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Detainees' lawyers trying to chip away at government secrecy

By The Associated Press

03.04.02

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NEWARK, N.J. — One sued to get himself deported. Another sued to have his trial opened to the public.

And lawyers hoping to represent many other post-Sept. 11 detainees went to court to force the government to release their names.

Frustrated by the unprecedented secrecy in which the government has cloaked its detention of people arrested for questioning after the Sept. 11 attacks, lawyers for the detainees are using a variety of legal tactics — some of them novel — to try to chip away at the official silence surrounding the cases.

"Here, you're first guilty, then after a few months you become a suspect, then finally, you're innocent," said Regis Fernandez, a Newark immigration lawyer representing several detainees.

Fernandez and several other immigration lawyers met last fall to plan a counterattack against secrecy directives that were rendering attorneys and advocates for detainees virtually powerless.

"We were relegated to making telephone calls to find out where our clients were and whether they'd been cleared," he said. "So we did just what the government is doing in these cases: We shared information and strategized and agreed to work together. More importantly, we're right."

The federal government says it needs to clamp down on information that once would have routinely been made public because it might help terrorist organizations know which of their members are — or aren't — in custody.

"This is an ongoing criminal investigation linked to an ongoing war against terrorist organizations worldwide," said Russ Bergeron, a spokesman for the U.S. Immigration and Naturalization Service. "Clearly, it is not in the interest of that investigation, the war, or the United States to provide information to our enemies. Attorney General Ashcroft has said we are not going to help al-Qaida in any way."

The latest detainee to go to court is Malek Zeiden, a Syrian doughnut shop worker charged with overstaying his visa. His lawyer, Bennet Zurofsky of Newark, sued Ashcroft and Annie Garcy, a Newark immigration judge who barred the public from attending a Feb. 21 hearing.

Zeidan had been living in Paterson for the past 13 years, although his visa permitted him to stay for just six months. He was arrested Feb. 1, the day after federal agents visited his house, looking for his roommate in an unrelated matter. Once there, they questioned Zeidan, who admitted he had overstayed his visa.

The judge cited a Sept. 21 memorandum issued by chief U.S. Immigration Judge Michael Creppy instructing judges to close hearings involving detainees whose cases have been designated "special interest" to the FBI. It also prohibits court administrators from listing the cases on dockets, or confirming when hearings are to be held.

"It's really a disgrace that the attorney general of the United States thinks we should return to tactics used during the Spanish Inquisition," Zurofsky said. "My client comes from a part of the world where they use these secret trials, and then people disappear."

U.S. District Judge John Bissell agreed to hear Zeiden's case challenging the secrecy directive on March 11.

In another instance of a detainee fighting back through the courts, Khalid Musa sued the U.S. Immigration and Naturalization Service last month in a bid to get himself deported. A Saudi native who has Australian citizenship but lives in Jordan, Musa was arrested Oct. 4 after someone tipped the FBI that he had violated the terms of a waiver program that lets people from certain countries enter the U.S. without a visa.

Fernandez said that soon after the suit was filed, the INS agreed to put Musa on a plane as quickly as possible. He remains in custody.

And the Newark chapter of the American Civil Liberties Union sued Passaic and Hudson counties, seeking to force them to release the names and charges against the more than 300 Sept. 11 detainees still being held in New Jersey. The suit claims the names of those arrested are public information under New Jersey law.

"Attorney General Ashcroft has made it clear he's going to fight tooth-and-nail the American people's efforts to find out what their government is doing with these people, some of whom literally vanished in the middle of the night," said Emily Whitfield, a spokeswoman for the ACLU's New York office.

"The records of who is arrested have been public information for a long, long time," added Deborah Jacobs, executive director of the ACLU's Newark chapter. "The vast majority of people being held are not charged with crimes or believed to be involved with terrorism."

But the U.S. Justice Department, which opposes the requests, was permitted last week to join the lawsuit on the side of the counties.

Related

ACLU sues N.J. counties for release of detainees' names
Lawsuit accuses officials of violating state's open-records laws by refusing to make public information on people jailed since Sept. 11 attacks.  01.23.02

ACLU to challenge secret detention hearings
Newark, N.J., chapter says it will bring lawsuit on behalf of newspapers seeking access to detainees' deportation proceedings.  03.06.02

Civil rights groups sue for data about detainees
Government secrecy in terror probe violates First Amendment 'right of access to records concerning judicial proceedings,' lawsuit claims.  12.06.01

N.J. judge orders counties to release detainees' names
ACLU representative says ruling is first of its kind to chip away at veil of secrecy surrounding terror probe.  03.28.02

Immigration courts open doors to some detainees' proceedings
Public hearings resume for people who authorities determined have no connection to Sept. 11 attacks.  11.01.01

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