Judge opens access to terrorism proceedings, but U.S. Supreme Court issues stay of order

From the Summer 2002 issue of The News Media & The Law, page 46.

A federal judge in New Jersey ruled on May 29 that the government’s policy of closing all immigration hearings of those detained from the September 11 investigations was unconstitutional.

But the U.S. Supreme Court eventually stayed the ruling to allow a federal appeals court to rule on the constitutionality of the hearing closures.

In his ruling, District Judge John W. Bissell found that the First Amendment right of access was infringed by a blanket closure order.

He ruled that immigration courts may close hearings on a case-by-case basis, but only after specific evidence has been presented to demonstrate that closure is necessary.

The ruling came from a lawsuit filed by the American Civil Liberties Union, the New Jersey Law Journal and the North Jersey Media Group. The organizations argued that their First Amendment right of access to court proceedings was infringed by a memorandum that ordered all immigration courts to close all hearings of immigrants detained as a result of the September 11 investigations.

The memorandum, known as the Creppy Memorandum, was issued on Sept. 21 by Chief Immigration Judge Michael Creppy.

The government appealed to the U.S. Court of Appeals in Philadelphia (3rd Cir.).

The Third Circuit declined to stay Bissell’s ruling but will hear arguments on the merits of the case later this summer.

The government then sought an emergency appeal to the U.S. Supreme Court, seeking a stay of Bissell’s order. The court issued a stay on June 28, allowing the government to keep post-September 11 immigration proceedings closed until the Third Circuit can rule on the constitutionality of the closure order.

The government has argued that releasing the names of the detainees or permitting access to immigration proceedings would threaten national security and aid terrorists. Before the Creppy Memorandum was issued, immigration proceedings were generally open to the public.

The government had previously lost a similar case in Michigan, where U.S. District Court Judge Nancy Edmunds ruled on April 3 that Rabih Haddad’s immigration hearings must be opened to the public. That decision is on appeal, and arguments were scheduled for Aug. 6 before the U.S. Court of Appeals in Cincinnati (6th Cir.). (See NM&L, Spring 2002) (North Jersey Media Group, Inc. v. Ashcroft) — AG