- The Washington Times - Friday, August 27, 2004

BALTIMORE — A federal judge will decide behind closed doors whether a Virginia man described as a top Hamas operative will continue to be held in custody after ruling yesterday that a detention hearing would be held in private.

U.S. Magistrate Judge Paul W. Grimm said the critical need to protect the secrecy of federal grand jury proceedings in Chicago, in which Ismael Selim Elbarasse is wanted to testify, is the “overriding” interest when deciding whether to hold a detention hearing here in open court.

Federal authorities have issued a material witness warrant for Mr. Elbarasse to appear before a federal grand jury that is probing the financing of the Palestinian extremist group Hamas. Judge Grimm said it would be too difficult to make sure a detention hearing wouldn’t reveal information integral to the grand jury’s investigation.

“We have the difficult overlap of hearings that traditionally have been open with proceedings that historically have never been open,” Judge Grimm said yesterday, ruling on motions by the Baltimore Sun and The Washington Post to keep the detention hearing open. “Trying to make the two fit is trying to put a square peg in a round hole.”

Assistant U.S. Attorney Harvey Eisenberg argued that the integrity of the grand jury process trumps the public’s “right to know.”

“That goes against a certain gut feeling that you and I have, but that is the law,” he told Judge Grimm.

The detention hearing, scheduled for yesterday, was put on hold when newspapers filed motions to keep it open. Sun Editor Timothy Franklin said the newspaper may appeal Judge Grimm’s decision, but meanwhile the newspaper will formally request the outcome of the proceeding be revealed in open court.

The detention hearing could be held as early as Monday, authorities said.

“If government is going to deprive someone, who hasn’t even been indicted, of their liberty … it seems like it should be done in a way the public can monitor how that’s being exercised,” Mary Craig, an attorney representing the Sun, said in court.

Mr. Elbarasse, an accountant from Annandale, Va., was arrested a week ago after officers pulled over his sport utility vehicle near the Chesapeake Bay Bridge. Police said his wife was using a video camera to tape the bridge’s structure.

Neither Mr. Elbarasse nor his wife was charged with wrongdoing on the bridge, but Maryland authorities held him in custody after discovering that a material witness warrant had been issued for him the same day in Chicago.

Mr. Elbarasse has been held for the past week at a maximum-security prison in Baltimore and was led into yesterday’s hearing in handcuffs. He remained silent while his federal public defender told Judge Grimm he is not taking a position on whether the detention hearing should be public.

Court documents say Mr. Elbarasse and defendant Mousa Mohammed Abu Marzook — considered one of the highest-ranking Hamas leaders internationally — shared a Virginia bank account that was used to launder hundreds of thousands of dollars for the Palestinian extremist group.

Hamas has carried out suicide bombings and other attacks in Israel.

The U.S. Attorney’s Office in Chicago wants to question Mr. Elbarasse, who was described in Mr. Marzook’s indictment as an unindicted co-conspirator.

Mr. Elbarasse’s attorney, Stanley L. Cohen of New York, said before yesterday’s hearing that he would not seek to block federal authorities’ plans to move his client to Chicago, but he plans to challenge the material witness warrant in U.S. District Court there.

“All I’m trying to do is get my client to Chicago as quickly as possible. Maryland has nothing to do with this case,” Mr. Cohen said.

He said he did not expect that Mr. Elbarasse or his wife would face charges in the bridge taping.

“There will be zero criminal charges — state or federal — with anything to do with that bridge,” Mr. Cohen said.

Associated Press writer Gretchen Parker contributed to this report.

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