Hidden federal detainee cases not rare, U.S. attorney says

• In a federal court hearing about a Freedom of Information Act request for ‘supersealed’ records in cases entirely shrouded from the public, a Justice Department lawyer told a judge that since Sept. 11, 2001, the practice has been used repeatedly.

April 11, 2005 — Complying with a public interest group’s Freedom of Information Act request for records about the federal government’s sealing of entire immigrant-detainee cases in U.S. district courts will be difficult because the practice is “not as rare as it seems on its face,” a Justice Department lawyer told a federal judge last month.

The department is no longer demanding a $373,000 fee to research an FOI Act request from People for the American Way Foundation for records relating to government court sealings in the wake of Sept.11, 2001. Rather, the department flatly denied the request in March as “overly broad” and “unduly burdensome.”

The foundation, which in a lawsuit accuses the government of improperly withholding documents that detail the secret post-Sept. 11 detentions of immigrants, recently asked the department to obtain from local U. S. attorneys and their assistants the number of “supersealed”

cases that were entirely sealed from the public and to release the numbers according to geographic area.

But Marcia Berman, an attorney in the Justice Department’s civil division, said during a March 17 hearing in federal court in Washington, D.C., that “while we certainly acknowledge that the plaintiffs have narrowed their request here, and we appreciate that, by limiting it to cases sealed in their entirety, that’s still not as rare as it seems on its face, “according to the hearing transcript.

Berman cited the “many material witnesses who were picked up and arrested” immediately following Sept. 11, 2001, as the reason for the number of supersealed cases.

“Many material witnesses were arrested, and in a lot of those cases they were just detained and never charged. But also in a lot of those cases, the government did ask for a proceeding or just an arrest warrant to be sealed,” Berman said.

Another problem with PFAW’s request is that about 2,000 assistant U.S. attorneys have left since then, leaving a “gap” in knowledge. U.S. District Judge John D. Bates countered that claim by estimating that only 15 or 16 offices of the 93 U.S. attorney offices nationwide would have difficulty complying with PFAW’s request. Berman agreed.

Elliot Mincberg, general counsel for People for the American Way Foundation, said the group’s FOI Act request was inspired by the secret case of Mohamed Kamel Bellahouel, an Algerian native and Florida restaurant worker who was detained for five months without charge. The case, uncovered in early 2003 by Miami Daily Business Review reporter Dan Christensen, brought public attention to the supersealing of legal proceedings at the behest of the government.

“In learning as we then did that there had been this totally secret federal court case that no one knew about, we said — particularly in light of experiences we’ve had with other post-9/11 things ‘hmm, I wonder how many other times there are these kind of secret cases going on?'” Mincberg explained. “And so the purpose of the request was to find out the answer.

“We would have been thrilled to find out the answer is zero, but part as [Berman’s] comment . . . indicates, it’s clear the answer is more than zero. Much more than zero.”

Justice Department spokesman Charles S. Miller declined comment on Berman’s remark. “There’s nothing we can say at this time,” he said.

The remarks are similar to the “deliberately vague” remarks of other Justice Department officials who say “as little as possible” about the matter, Ricardo J. Bascuas, an associate law professor at the University of Miami, told the Daily Business Review.

The parties are scheduled for another hearing before Bates on April 21. Mincberg said it is important to get the issues resolved quickly.

“One of the things we worry about in this case is delay and delay and delay in getting the documents — although unfortunately I expect that the issue is not one that’s going to go away,” he said.

(People for the American Way Foundation v. United States Department of Justice; Counsel: Michael P. Spence, Arnold & Porter LLP, Washington, D.C.) — KK

Related stories:

• Government drops FOI denial, charges $372,799 instead (02/04/2005)

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