Dan Christensen ...
America’s Underground Legal System
After years of covering the courts, I thought I knew the basics. Crimes are
charged and prosecuted, lawsuits are filed and fought, and every case is
publicly accounted for on the court’s extensive docket. But some federal courts keep a second set of docket books
the public doesn’t see. And as I found out, prosecutors and the courts have used that secret
docket to suppress newsworthy cases.
Super-sealing, as the practice has been called, hides cases by withholding every
trace of their existence from the public record. Even case numbers are
confidential when cases go on a secret docket.
No explicit legal authority exists to implement such extreme secrecy, and
authorities have yet to explain the need for it. A secret docket runs counter
to the U.S. judicial system’s long tradition of openness, but judges and prosecutors in the know won’t even acknowledge such sealed cases exist. In other words, with no notice or
debate, the traditional rules governing public access to court records have
shifted.
Judges, of course, shield sensitive matters every day — unripe investigations and grand jury proceedings, the trade secrets of
litigants, the identity of government informants. But the brand of secrecy
imposed when cases are super-sealed is more chilling, and it means that
reporters can no longer assume that every important case is disclosed on the
public docket.
We know about this because of the super-sealed habeas corpus case of Mohamed
Kamel Bellahouel, an Algerian living in South Florida, who was among hundreds
of men of Middle East origin whom federal agents detained without criminal
charge in the aftermath of the terror attacks in September 2001. He is one of a
handful of those detainees whose names have become public.
FBI agents were following the trail of the dead Sept. 11 hijackers when they
learned of Bellahouel, a waiter at a Middle Eastern restaurant in Delray Beach
who apparently served food to Mohamed Atta and some of the other hijackers.
That, plus the recollection of a movie theater employee who said she saw
Bellahouel go into the theater with one hijacker, led to his arrest a month
after the attacks.
Bellahouel was detained on an immigration charge — overstaying his student visa — and spent the next five months in federal custody in Miami. We know that at
some point the government considered him a material witness and that he was
transported to Virginia briefly to testify before the grand jury that indicted
accused al Qaeda operative Zacarias Moussaoui. We don’t know why Bellahouel was designated a material witness, but we do know he was
released around March 1, 2002, with no criminal charges being lodged against
him.
Two months earlier, while still in custody, Bellahouel had filed his habeas
lawsuit in hopes of getting out. Such cases are traditionally open, but Miami
U.S. District Judge Paul C. Huck immediately and completely sealed this case.
It would have stayed invisible, but a mistake by an appeals court clerk a year
later caused Bellahouel’s name and case number to be included on a public hearing calendar.
I noticed the clerk’s attempt to cover up that mistake by deleting Bellahouel’s name from a later edition of the calendar and decided to go to the March 5,
2003, hearing to see what was up.
That morning in Miami, a three-judge panel of the 11th U.S. Circuit Court of
Appeals heard the day’s other scheduled cases, then took a recess. During the break, the courtroom was
closed, with a couple of burly U.S. marshals posted outside. Inside, Bellahouel’s hearing proceeded in secret. Gag orders prevented anyone from commenting. His
lawyers at the Miami Federal Public Defender’s Office wouldn’t even say they represented him. Things were so secret that Federal Public
Defender Kathleen Williams had to show ID to enter the courtroom.
At that point, as you might imagine, I was mad and getting madder. And I didn’t have Bellahouel’s name anymore because I had thrown away the early edition of the hearing
calendar on which it was listed. I decided to plug the case number into the
court’s electronic docket, and I got lucky: His name was listed. It wasn’t to remain public for long, though. I called the clerk’s office to inquire about the altered court calendar, and an official said the
calendar was changed to restrict access to information that had been
erroneously disclosed.
I told a clerk that Bellahouel’s name nevertheless remained on the court’s computer docket. He replied, “It is? We’ll have to fix that, too.” Within hours, his name was again underground.
The stories I wrote about Bellahouel’s case soon yielded tips about similar secrecy practices. One involved the
high-profile prosecution of Colombian drug lord Fabio Ochoa. Defense attorneys
claimed that Ochoa was indicted because he had refused to play ball with
corrupt American authorities looking to induce major traffickers to surrender
by selling them sentence reductions in advance.
Several drug defendants were allegedly involved in that bribes-for-deals scheme,
but their South Florida cases were sealed in whole or in part. The most extreme
case was that of Nicholas Bergonzoli, who was convicted, sentenced and
imprisoned in total secrecy. His case was blacked out from 1999 until two weeks
after I wrote a story about it in May 2003.
Was Bergonzoli’s case hidden to cover up government corruption, as Ochoa and his lead attorney,
South Florida celebrity lawyer Roy Black, contend? We don’t know. And federal authorities have offered no explanation for such secrecy.
Black is appealing Ochoa’s conviction to the 11th Circuit based in part upon court secrecy practices. In
oral arguments in late November, Judge Rosemary Barkett voiced strong concerns
about the extraordinary secrecy that enveloped the cases of both Bergonzoli and
Bellahouel.
The 11th Circuit has not yet decided Ochoa’s appeal, but a ruling is due soon. If Ochoa loses, that sets the stage for a
fight at the Supreme Court. Black has told me he’ll appeal if Ochoa loses.
Mohamed Bellahouel’s case went to the U.S. Supreme Court before it was over. Along the way, it
stirred a national debate.
In heavily censored filings in which he was identified only by his initials,
M.K.B., Bellahouel asked the justices to decide whether Judge Huck and the 11th
Circuit had abused their discretion by super-sealing his case without
explanation or the notice that’s typically required to justify court secrecy. Bellahouel’s self-censorship wasn’t by choice. Gag orders from the lower courts required it.
Entire pages of Bellahouel’s petition to the Supreme Court were blacked out to comply with those gag
orders. Lucy Dalglish, executive director of The Reporters Committee for
Freedom of the Press, would later observe that “no other case filed with the Supreme Court has been handled with such excessive
secrecy.”
Despite the censorship, the Supreme Court was the first court to publicly
acknowledge that Bellahouel’s case existed. All the secrecy soon caught the eye of Dalglish and the RCFP,
which in November 2003 filed a friend-of-the-court brief that called M.K.B. v.
Warden “the most egregious recent example of an alarming trend toward excessive secrecy
in the federal courts.”
Eventually, the Reporters Committee assembled a coalition of media, legal and
public interest groups, including The New York Times, The Washington Post and
my newspaper’s parent, American Lawyer Media, to intervene as parties in the case.
But last February, without explanation, the court declined to hear the case.
That was the end of the case, but not the intrigue. The Supreme Court allowed
U.S. Solicitor General Ted Olson to file virtually all of his pleadings under
seal, something that’s extremely rare. Using the redacted briefs filed by Bellahouel’s attorney, a top-flight appeals specialist in the Miami Federal Public Defender’s Office named Paul Rashkind, I filed a story outlining Olson’s bold argument for secrecy in M.K.B. to the high court: that grand jury secrecy
laws can be stretched beyond traditional limits to hide ancillary proceedings
that merely touch on grand jury matters — matters like M.K.B.’s habeas case. Rashkind’s censored court papers characterized Olson’s argument as a “broad and revolutionary interpretation” of the law. Leading First Amendment attorneys I spoke with, including Floyd
Abrams of Pentagon Papers fame, agree.
Have federal prosecutors made that radical argument elsewhere to hide other
newsworthy cases? We don’t know. Will they in the future? We may never know.
So how widespread is the use of secret dockets? We don’t know that, either. But we do know it’s not confined to Florida and the 11th Circuit. Secret dockets have been exposed
in Connecticut and Maine involving embarrassing civil matters like divorces.
And the federal public defender in Washington, D.C., A.J. Kramer, told me that
a secret docket is in use there to hide the existence of cases in which the
lives of cooperating witnesses who plead guilty may be in danger. No news
organization has yet followed up.
The liberal public interest group People for the American Way, a coalition
member, has said it was inspired by Bellahouel’s case to use the Freedom of Information Act to compel the Justice Department to
make public more data about hidden cases. The effort got some national ink in
January when the DOJ told the group it would have to pay a huge up-front
research fee of $373,000. The Justice Department later dropped that demand. But
it also denied the group’s FOIA request. The access fight continues in federal court in Washington.
Secrecy has always been an occupational hazard for reporters. But a court
super-seal casts a total information eclipse that’s both extraordinary and pernicious. To combat it, reporters must become more
aggressive. Judges, court clerks and prosecutors should be put on the spot and
questioned about whether the practice is in use in their courthouse. Criminal
defense attorneys and public defenders should be asked if they know of any
secretly docketed cases. And court records should be watched for clues that
might flush important cases from the dark corners that we now know exist in
some of our nation’s courthouses.
— Dan Christensen
federal reporter
Daily Business Review, Miami, Fla.
First Amendment Awards and Scholarship Dinner
Fort Worth, Texas
April 9, 2005