Court upholds secrecy in hearings for Va. man held in Hamas case

Privacy more crucial than public access, judge says

August 28, 2004|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

A federal judge upheld yesterday the government's right to impose secrecy in court proceedings for Ismail Selim Elbarasse, the Virginia man who has not been charged with a crime but is being held in Baltimore as a material witness in a Chicago case involving the militant group Hamas.

In his ruling, U.S. Magistrate Judge Paul W. Grimm said that in this case the importance of grand jury confidentiality trumps the public's right to access - a stance that continues a national pattern of secrecy surrounding these types of witnesses.

"I am mindful of the extraordinarily important issues here," the judge said in denying a request by The Sun and The Washington Post to open a planned detention hearing for Elbarasse. "It is a very close issue."

The judge also postponed the detention hearing, in which prosecutors will try to show that he is a flight risk. Material witnesses such as Elbarasse - who was arrested last week after his wife's videotaping of the Bay Bridge caught the attention of officers - are not charged with crimes, but are imprisoned because authorities fear they won't show up to testify before a grand jury.

Anti-terrorism investigations since Sept. 11, 2001, have resulted in the detention of dozens of material witnesses who are denied many of the rights afforded to criminal defendants. Material witnesses do not have to be given the reasons for their arrest, and many of the proceedings against them take place without public scrutiny. Case files are sealed so there is no public record that the person is in custody.

Over the past week, the U.S. attorney's office in Chicago, which had asked that Elbarasse be seized as a material witness, would not confirm that he had been arrested.

Elbarasse is not charged in connection with the videotaping, which occurred while he was driving family members home from what they say was a beach vacation. Nor is he charged in the Chicago case, in which a grand jury named him as an unindicted co-conspirator in an alleged plot to launder money on behalf of Hamas, which the United States has labeled a terrorist organization.

Elbarasse was returned yesterday afternoon to the Maryland Reception, Diagnostic and Classification Center in Baltimore, where he is kept in a cell 23 hours a day.

On Thursday, prosecutors filed a motion to close Elbarasse's detention hearing. Yesterday, the judge granted the newspapers' requests to oppose that motion, and held an open court hearing on the matter.

Elbarasse's lawyer, assistant federal public defender Franklin W. Draper, said his client had no position on whether the hearing should be closed.

In the hearing, the newspapers' lawyers said the public should know how the government decides to deprive an uncharged person of his liberty.

"This is really about the public's right to monitor and evaluate the performance of public institutions in a very serious matter, which involves the government's ability to basically detain someone who has not been charged with a crime, to hold them without the public being able to evaluate," said The Sun's lawyer, Mary R. Craig.

She said that a drug dealer, or other defendant charged with a crime, would have a detention hearing open to the public.

But Assistant U.S. Attorney Harvey E. Eisenberg said the grand jury process is an exception to the "public's right to know," and that Elbarasse's status as a material witness - as well as questions about his flight risk - were tied to grand jury proceedings in Chicago.

Although he said that he could not talk about what the Chicago grand jury was looking at, Eisenberg referred to items found in Elbarasse's home during a search this past week, including a copy of The Anarchist Cookbook. The Anarchist Cookbook is a title used by many Internet guidebooks on disruptive skills including making bombs and picking locks.

"I believe the public would require prosecutors to run that information into the ground," he said.

Lawyers for the newspapers are evaluating whether they will appeal. In other developments in Elbarasse's case, Maryland Transportation Authority police released a surveillance video that shows officers stopping Elbarasse's car west of the Bay Bridge on Aug. 20. The video shows little detail.

Sun staff writer Ryan Davis contributed to this article.

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