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A case involving secret hearings for a forger who sold fake international driver’s licenses to two Sept. 11 hijackers ended in an anticlimax Feb. 4 with a plea deal in Passaic County, N.J. The disposition gives Mohamed El-Atriss his freedom. Convicted of one count of the second-degree sale of simulated documents, he was released from jail and given five years’ probation. Still in question, though, is the permanence of the seal on transcripts of bail hearings from which El-Atriss and his attorney were excluded. The case has caught the attention of lawyers for local and national newspapers — the New Jersey Law Journal, The Washington Post, The New York Times, The Record of Hackensack, The Star-Ledger of Newark and the Herald News of West Paterson — which banded together to consider a challenge. The ex parte, in camera hearings, which culminated in a sealed ruling, are apparently unique in New Jersey’s history. To hold them, Judge Marilyn Clark relied on an obscure, uncited precedent — State v. Campisi, 64 N.J. 120 (1973) — that many thought had been rendered irrelevant by a string of U.S. Supreme Court rulings favoring a presumption of openness in criminal court proceedings. As a result, El-Atriss became the only person charged as a criminal in the aftermath of Sept. 11 who has not been allowed to confront all the evidence against him. Even Zacarias Moussaoui, the alleged “20th hijacker,” has experienced greater openness than that offered in Clark’s court. An Appellate Division panel led by Judge Howard Kestin ruled last month that Clark should more fully explain her rationale for preventing El-Atriss from attending his own hearings. The panel did not rule on the merits of the secrecy itself. The plea rendered Kestin’s order moot, Clark said from the bench Feb. 4. “If the plea did not happen today I would of course hold the remand hearing,” she said. “This court was fully prepared to state here today its reasons.” Had the case gone to trial, the Appellate Division still could have overturned Clark’s secrecy order and exposed the workings of the investigation that led to the defendant’s capture. Last week’s media response came together quickly. By Friday, Louis Pashman of Hackensack, N.J.’s Pashman Stein, who is representing the newspapers, had sent a letter to Clark contesting her declaration that Kestin’s remand order is moot. “As far as we’re concerned the plea doesn’t address the underlying issue, which is still alive,” says Pashman, who wants a full hearing to go forward. Somewhat eclipsed by the legal maneuvering was El-Atriss. According to his lawyer, Clifton, N.J., solo practitioner Miles Feinstein, El-Atriss had come to the attention of authorities within a week of Sept. 11, 2001, when the Federal Bureau of Investigation discovered that one of his customers was a member of al-Qaida. El-Atriss cooperated with the federal agents from the beginning, Feinstein said, and it was he who told them a second terrorist might also have used his documents. Those men turned out to be Khalid al-Midhar, aboard the jetliner that was flown into the Pentagon, and Abdulaziz Alomari, aboard the first plane to hit the World Trade Center. El-Atriss was kept under surveillance for much of the next year in the hope that the forged-document mill he ran out of a scrappy Paterson, N.J., storefront would lead federal authorities to more important terrorist figures. But that scheme collapsed in July 2002, when Passaic County Sheriff Jerry Speziale invited dozens of news reporters to watch his officers arrest El-Atriss at the store, All Services Plus. Unfortunately, El-Atriss had flown to Egypt days before the raid, and Speziale came out empty-handed. While creating negative headlines, Speziale was called before state Attorney General David Samson and U.S. Attorney Christopher Christie, where he was lectured on cooperation in terrorism cases. El-Atriss, who maintains he had no idea who his customers were, was arrested weeks later at Kennedy International Airport when he returned voluntarily. He was held on $250,000 bail, which was doubled to $500,000 — a figure not usually associated with second-degree forgery — when Clark held a series of secret bail hearings during which she heard witnesses and made a sealed ruling. Throughout the case, Senior Assistant Prosecutor Steven Brizek had maintained that the creation of a unique, closed judicial apparatus for pursuing the case was a matter of national security. In a hint that the rift caused by Speziale remains unhealed, the U.S. Attorney’s Office and the FBI kept their distance from the case and declined entreaties from Brizek, Clark and Kestin to become involved. El-Atriss was never charged with selling papers to the hijackers. That allegation was made only in a search warrant leaked by the sheriff’s office. Feinstein, who had protested the shadowy nature of Brizek’s pursuit of his client, brushed off the issue in court and praised Brizek and Clark for their handling of the case. “We understand that Your Honor [Clark] had a very, very difficult dilemma,” he said. “You in fact tried to do the right thing … . [El-Atriss] understands the dilemma you had.” Brizek, besieged by reporters outside the court, reiterated Feinstein’s point. El-Atriss “has been treated fairly and no different from any other defendant … . He understands what was done here.” As the Feb. 4 session came to a close, and with El-Atriss quietly crying, Clark added one more scintilla of secrecy, this time at the request of the defense: She agreed to seal the address in Union County, N.J., at which El-Atriss will live when he leaves jail — to protect his privacy.

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