- The Washington Times - Tuesday, December 11, 2001

Secrecy imposed on immigration hearings for September 11 terror suspects is so tight that nearly half the Justice Department's 220 immigration judges lack the security clearance needed to hear the "special" cases.
"We have 112 immigration judges with security clearances of secret or above, out of 220 judges overall," Rick Kenney, spokesman for the Executive Office for Immigration Review, said in an interview yesterday.
Mr. Kenney said cases have been heard under the new security procedures at some of the 52 regional immigration courts, but even Chief Immigration Judge Michael J. Creppy, who implemented the procedure, would not estimate the number.
"There is no way to tell how many cases are being heard that way, because we are not counting them," Mr. Kenney said.
Organizations wanting to defend accused foreigners were so frustrated by the lack of information that a group led by the American Civil Liberties Union filed a lawsuit here last week to penetrate the secrecy.
"Most aliens just happened to get caught in the net. They don't know anything at all," said James Zogby, of the Arab American Institute. "Visa violators and terror suspects are simply not the same thing."
"This is the challenge," said Jeanne Butterfield, executive director of the American Immigration Lawyers Association, which seeks to match volunteer lawyers with inmates.
"You can imagine that's somewhat difficult when you can't find out who is detained and whether or not they are represented by counsel," she said. "I'm in despair wondering who is representing these folks."
Justice Department officials up to and including Attorney General John Ashcroft insist detainees awaiting immigration hearings have access to telephones and lists of legal aid groups.
Many aspects of immigration court secrecy have been debated since Judge Creppy issued orders carrying out Mr. Ashcroft's anti-terrorism directive. But the extent to which judges of the immigration court are shut out of cases was not widely known even among lawyers who specialize in the field.
Judge Creppy's order detailed how computers and files should be coded so that neither the substance of the case nor the fact that there would be a hearing shows up on computers or through automated telephone services.
Public requests for information by case number receive a "Warning Warning" notice, and computers alert court clerks "whenever anyone else attempts to enter the ANSIR record," according to the order, which uses the acronym for the Automated Nationwide System for Immigration Review. ANSIR contains similar safeguards to protect identities in immigration cases where battered children or battered spouses are involved.
So many judges lack security clearance, Mr. Kenney said, because "in the past, there haven't been many cases involving classified information."
"There wasn't a crying need for all immigration judges to be cleared," he said.
Judge Creppy said yesterday, "If necessary, and as the need arises, we will obtain more security clearances."
The new prospect that some cases "may ultimately involve classified evidence" keeps the 108 immigration judges who lack clearance from conducting hearings on what the Justice Department designates as "cases requiring special procedures." That category may be requested by the Immigration and Naturalization Service, from which the court is independent, or by the Justice Department, to which both organizations belong.
"No visitors, no family and no press," Judge Creppy directed in his order implementing the extraordinary procedures.
"You should instruct all courtroom personnel that they are not to discuss the case with anyone," he said of hearings that previously could be opened to the public.
"Normally, cases are open, but there are exceptions on a case-by-case basis," Mr. Kenney said.
However, the "respondents" whose deportation is at stake plus their attorneys when they have one are present, along with security officers, stenographers and other court employees.
Immigration lawyers cannot be required to have security clearances, Mr. Kenney said. "We can't require clearance for anyone who doesn't work for us," he said.
However, he pointed out that lawyers and their clients in cases designated as special are entitled only to see unclassified summaries of the information when "secret evidence" is involved. A Senate bill is pending that would nullify even that requirement.

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