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At the request of the Passaic County, N.J., prosecutor’s office, Judge Marilyn Clark has held an extraordinary series of secret bail hearings during the past two months in a case linked to the Sept. 11 attacks. The Passaic County Superior Court hearings, which excluded the defendant and his attorney and which were held behind the locked doors of Clark’s courtroom and her chambers, are believed the first of their kind in a New Jersey state court. As such, they represent a significant extension of the judicial secrecy that has become the hallmark of post-Sept. 11 terrorism proceedings in the federal courts and military tribunals. Even the lawyer who requested the hearings, Senior Assistant Prosecutor Steven Brizek, concedes that he and the judge have created an apparently unique legal apparatus in the state. “I certainly haven’t encountered this since I’ve been a prosecutor, in 22 years,” he says. The defendant, Mohamed El-Atriss, is accused of conspiracy and second-degree racketeering for operating a document-forging mill. Specifically, he is alleged to have sold fake identification cards to two of the Sept. 11 hijackers. El-Atriss, a citizen of the United States and of Egypt, was arrested last July amid a blaze of publicity orchestrated by Passaic County Sheriff Jerry Speziale. The sheriff’s department’s search warrant affidavit, normally sealed by the court, was leaked to the media. It named several FBI undercover agents. The moves angered federal authorities, who were hoping to track El-Atriss surreptitiously. El-Atriss was held on $250,000 cash bond with no 10 percent option. The most recent hearing, on Jan. 8, was the third since Nov. 19. Thus far, Clark has heard evidence from two witnesses and Brizek, and she has made one secret ruling. Tapes and transcripts from the hearings and her findings have been sealed and kept from the defense. Briefs related to an emergency appeal application were filed in Appellate Division Judge Howard Kestin’s chambers on Monday by El-Atriss and Tuesday morning by the state. El-Atriss will be represented by Clifton, N.J., solo practitioner Miles Feinstein, who recently replaced Elizabeth, N.J., solo practitioner Hassen Abdellah, El-Atriss’ original lawyer. Kestin is scheduled to make a decision in the matter today. JUDGE INVITES SECRECY REQUEST While criminal courts have historically been open to the public and the press, two U.S. Supreme Court cases — Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, and Press-Enterprise Co. v. Superior Court, 478 U.S. 1 — allow closure if a judge makes findings that the proceedings might be compromised if they remain open. Clark did not make a formal ruling stating such findings, but she did write in a letter to counsel one month before the Nov. 19 session that she would be amenable to closure “[i]f the Prosecutor represents on the record that the presence of [the defense attorney] and the defendant during in camera testimony would harm or otherwise compromise the [ongoing] investigation.” Brizek made such a request, and Clark granted it. She relied on a 1973 New Jersey Supreme Court case, State v. Campisi, 64 N.J. 120, involving a mobster suspected of several homicides. The prosecution was allowed to present documentary evidence in secret during bail hearings to protect the identity of police sources. The case has not been cited in any other precedential ruling, according to a Lexis Nexis search. Oddly, Brizek’s request went largely unopposed until after the secret hearing was over on Nov. 19. When Brizek and the judge came back into court to continue the hearing in the open, Abdellah’s frustration became evident. “Your Honor, I feel kind of constrained because at this point, since you had an in camera proceeding, I really don’t know what to say,” Abdellah said. “I don’t want to make myself look like a fool because I don’t know what’s been presented.” He continued: “I assumed that if the prosecutor was going to ask for an in camera inspection, a motion would have been filed or some papers would have been submitted so I at least would have a basis to make an objection. Nothing was filed … there’s no argument I can make.” Clark was riled by Abdellah’s implication that she had skipped the formalities. “I take strong issue with your representation that he has not received due process,” Clark said. “I indicated upon request from the prosecutor I did not require a motion. I received a letter from the prosecutor, which is exactly the same as getting a motion under these circumstances.” Clark also repeatedly assured him she would be as impartial as possible in his case — and then she raised El-Atriss’ bail to $500,000. Last week, Abdellah’s frustration had not subsided. “I don’t think the process has been fair from the inception, so why would that be any different?” he said. Feinstein says his appeal will be based on the constitutionality of the Campisi case. “Our contentions are that in fact the bail is excessive, unconstitutional, denies him equal protection and due process.” He also sought to distinguish Campisi from his client: “In Campisi you had an idea what kind of information it was, here it’s very difficult … to know what’s involved. We have nothing other than statements by the federal people that he was cleared [of links to Sept. 11].” A PREFERENCE FOR OPENNESS Secret hearings and secret evidence have a rocky history in the jurisdiction. Most recently, Chief Judge John Bissell of the U.S. District Court of New Jersey ruled that such hearings in immigration court were unlawful ( North Jersey Media Group v. Ashcroft, 02-2524). That ruling was overturned by the 3rd U.S. Circuit Court of Appeals. The plaintiffs, which include the New Jersey Law Journal, have yet to decide whether to petition the U.S. Supreme Court. In the state courts, the New Jersey Appellate Division and the New Jersey Supreme Court last year refused to force county jails to hand over to the American Civil Liberties Union of New Jersey a list of “special interest” detainees arrested in the Sept. 11 probe, ACLU v. Hudson County, A-4100-01T5. In 1999, U.S. District Judge William Walls of the District of New Jersey ruled in Kiareldeen v. Reno, 71 F. Supp. 2d 402, that a Palestinian held on bail for 19 months on secret evidence during deportation hearings must be released. The man, Hany Kiareldeen, had been accused of knowing something about the 1993 bombing of the World Trade Center’s twin towers. “The government’s reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike,” Walls wrote. The decision was not appealed. “My client was unlawfully held for over 19 months only to find out that [the secret evidence against him] was a disgruntled ex-wife,” says Regis Fernandez, a Newark, N.J., solo practitioner who represented the plaintiff. “In that case, we warned about the dangers of using secret evidence, and also the danger that it could be used against U.S. citizens, and now we see it is.” Opposing Fernandez in that case was former U.S. Attorney Robert Cleary, now a partner at Proskauer Rose in Newark. “It’s rare,” Cleary says of Clark’s maneuver. But, he says, “There are at times valid justifications for sealing. What judges do is they have a balancing test wherein they would assess the harm to be done to the public or the defendant by having an open proceeding, against the rights of the parties and of the public.” Among those concerns, Cleary says, are “a likelihood of imminent danger to the parties or witnesses or anyone in the public, national security concerns, the risk or the substantial likelihood that ongoing investigations of serious or dangerous matters would be compromised and the likelihood that you would have the denial of a far trial to either side.” Brizek defends the hearings, although in order to maintain their confidentiality he can do so only in the broadest terms. “It is certainly not unknown in the criminal justice system, [to have] ex parte, in camera hearings. Every day we have cases presented to the grand jury, and those are proceedings which are not public — the evidence is presented without the defendant and his attorney present. There are other examples in the criminal justice system where, routinely, things are done in a confidential way.” He adds, “But certainly this particular proceeding is somewhat exceptional.” Clark underlined that sentiment on Nov. 19, when, concluding her increased bail ruling, she said, “This court seriously doubts that he [El-Atriss] anticipated the seriousness of the charges that would be facing him or the circumstances that he now finds himself in.” The FBI and the Department of Justice have since distanced themselves from the investigation. “The U.S. Attorney’s office is not involved in the case,” says spokesman Michael Drewniak. “Hence it is entirely in the hands of the Passaic County Prosecutor’s office.” The FBI did not return a call for comment. The case is State v. El-Atriss, W-3337476.

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