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The 3rd U.S. Circuit Court of Appeals has ruled by a 2-1 vote that the press and public have no constitutional right to attend the deportation hearings of aliens suspected of having a connection to the Sept. 11 terrorist attacks. “We are unable to conclude that openness plays a positive role in [Sept. 11-related] deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension,” 3rd Circuit Chief Judge Edward R. Becker wrote in North Jersey Media Group Inc. v. Ashcroft. “Our judgment is confined to the extremely narrow class of deportation cases that are determined by the Attorney General to present significant national security concerns. In recognition of his experience (and our lack of experience) in this field, we will defer to his judgment,” Becker wrote in an opinion joined by Judge Morton I. Greenberg. But in dissent, Judge Anthony Scirica said he believed the same national security concerns could be addressed by allowing immigration judges to consider closing hearings on a case-by-case basis, and that the blanket policy of closing all terrorism-related cases went too far. In the suit, two newspapers — the Herald News and the New Jersey Law Journal (which, like the Legal Intelligencer, is published by American Lawyer Media, and is an affiliate of law.com) — complained that their reporters were repeatedly denied docket information for and access to deportation proceedings in Newark, N.J.’s Immigration Court. The lawsuit challenged a directive issued just 10 days after the Sept. 11 attacks by Chief Immigration Judge Michael Creppy that effectively created an “information blackout” in all Sept. 11-related deportation cases. In the first round of litigation, the media won a significant victory when U.S. District Judge John W. Bissell of the District of New Jersey declared that the Creppy directive was unconstitutional. Bissell found that deportation hearings are presumptively open to the public and that adequate procedures already exist for closing cases on a case-by-case basis. Later, Bissell declared that his injunction was national in scope. Now the 3rd Circuit has ruled that Bissell erred in holding that the press and public have a constitutional right of access to deportation hearings, and that he failed to give enough weight to the government’s argument that the Creppy directive was essential to preserving national security. The 3rd Circuit’s ruling could set the stage for the U.S. Supreme Court to hear its first major Sept. 11-related case because it conflicts with a decision by the 6th U.S. Circuit Court of Appeals, which, like Bissell, declared the Creppy directive unconstitutional. Judge Becker found that since deportation hearings are conducted by the executive branch of the government, they are not perfectly analogous to criminal and civil trials, which have a long history of being open to the public. “There has never been a fundamental right of access to all government proceedings. Even today, many are closed by statute, including such frequent and important matters as Social Security hearings,” Becker wrote. “Deportation procedures have been codified for approximately 100 years but, despite their constant reenactment during that time, Congress has never explicitly guaranteed public access,” Becker wrote. Becker found that Bissell’s logic was flawed because he focused only on whether open deportation hearings would have a positive effect on society, and failed to consider “the flip side — the extent to which openness impairs the public good.” “This case arises in the wake of September 11, 2001, a day on which American life changed drastically and dramatically. The era that dawned on September 11th, and the war against terrorism that has pervaded the sinews of our national life since that day, are reflected in thousands of ways in legislative and national policy, the habits of daily living, and our collective psyches,” Becker wrote. “Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation hearings might impair national security, that security is implicated in the … test,” Becker wrote. Becker found that the Creppy directive was aimed only at a small category of deportation cases — so-called “special interest” cases — in which the government believes that an alien may have some connection with, or possess information pertaining to, the Sept. 11 attacks. “Special interest cases include aliens who had close associations with the September 11 hijackers or who themselves have associated with al Qaeda or related terrorist groups,” Becker wrote. The Creppy directive implemented heightened security measures in all special interest cases, requiring immigration judges “to close the hearing to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside the Immigration Court.” It also instructed immigration judges that “the courtroom must be closed for these cases — no visitors, no family, and no press,” and explains that the restriction even “includes confirming or denying whether such a case is on the docket or scheduled for a hearing.” As Becker described it, “the directive contemplates a complete information blackout along both substantive and procedural dimensions.” Justice Department lawyers argued that the directive was necessary to avoid disclosing potentially sensitive information to terrorists. Becker found that Bissell was wrong to reject the government’s national security arguments. “The government offers a litany of harms that might flow from open hearings. Most obviously, terrorist organizations could alter future attack plans, or devise new, easier ways to enter the country through channels they learn are relatively unguarded by the Department of Justice,” Becker wrote. “They might also obstruct or disrupt pending proceedings by destroying evidence, threatening potential witnesses, or targeting the hearings themselves. Finally, if the government cannot guarantee a closed hearing, aliens might be deterred from cooperating with the ongoing investigation,” Becker wrote. American Civil Liberties Union attorney Lee Gelernt, who argued the case on behalf of the two New Jersey publications, said that he and the lawyers on his team are considering whether to appeal to the Supreme Court or ask for the case to be reheard by the full 3rd Circuit. “We are disappointed that the court has sanctioned the use of secret hearings to deprive people of their liberty,” Gelernt said. “Locking people up in secret hearings is profoundly at odds with the basic principles of fairness.” At oral argument, Gelernt told the court that the media was not insisting on the right to attend every deportation hearing, but only that the closure of hearings be done on a case-by-case basis. Many of Gelernt’s arguments were adopted by Judge Scirica in his dissent. “At issue is not whether some or all deportation hearings of special interest aliens should be closed, but who makes that determination,” Scirica wrote. Scirica found that deportation hearings have a consistent history of openness. “Congress first adopted immigration statutes at the end of the 19th century. In so doing, Congress expressly closed exclusion proceedings while leaving deportation hearings presumptively open. For at least 100 years, deportation hearings have remained presumptively open to the public,” Scirica wrote. Scirica said he disagreed with Becker’s conclusion that the press and public do not have a constitutional right of access to most deportation hearings. Becker’s logic was flawed, Scirica found, since national security issues arise in only a small number of deportation cases. “The demands of national security … do not provide sufficient justification for rejecting a qualified right of access to deportation hearings in general,” Scirica wrote. “To conclude otherwise would permit concerns relevant only to a discrete class of cases to determine there is no qualified right of access to any of the broad range of deportation proceedings.” Instead, Scirica said he would hold that the press has a “qualified right of access” to deportation hearings — a holding that would shift the burden to the government on a case-by-case basis to show that it had compelling reasons for closing the hearings. But Scirica said he agreed with Becker’s conclusion that Bissell had “undervalued the deference due the government in national security cases.” “Courts have consistently recognized the need for heightened deference to the judgments of the political branches with respect to matters of national security when terrorism or other special circumstances are at issue,” Scirica wrote. “The government’s asserted interest — national security — is exceedingly compelling. Closure in some — or perhaps all — special interest cases may be necessary and appropriate,” Scirica wrote.

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