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America’s Underground Legal System

From the Winter 2004 issue of The News Media & The Law, page 11.

From the Winter 2004 issue of The News Media & The Law, page 11.

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 discovered last year, the courts have used that secret docket to suppress newsworthy cases.

Super-sealing, as the practice is known, hides cases by withholding every trace of their existence from the public record. Even case numbers are confidential when cases are put on a secret docket.

No explicit legal authority exists to implement such extreme secrecy, and authorities have yet to explain the need for it. The use of 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 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, seal sensitive matters every day — shielding unripe investigations and grand jury proceedings, preserving the trade secrets of litigants, and protecting government informants. But the absolute, unexplained brand of secrecy imposed when cases are super-sealed is more chilling, and its introduction into the court system means reporters can no longer assume that every important case is disclosed on the public docket.

The civil habeas corpus case of Mohamed Kamel Bellahouel is instructive. Bellahouel, an Algerian living in South Florida, was detained five months in the aftermath of the terrorist attacks on New York City and Washington, D.C., in 2001. He came to the attention of the FBI because he apparently served food to Mohamed Atta and other Sept. 11 hijackers while working at a Middle Eastern restaurant.

Bellahouel, never charged with a crime, filed suit from jail. U.S. District Judge Paul C. Huck, of Miami, sealed it completely. It would have stayed invisible, but an appeals court clerk mistakenly listed Bellahouel’s name and case 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, and went to the March 5, 2003, hearing to see what was up.

A three-judge panel of the U.S. Court of Appeals in Miami (11th Cir.) heard the other scheduled cases, and then took a recess. During the break, the courtroom was closed to the public and 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.

At that point, I didn’t have Bellahouel’s name because I had thrown away the early edition of the hearing calendar. I plugged the case number into the court’s electronic docket and got lucky: his name was listed. But it wasn’t there for long. When I called the clerk’s office to inquire about the altered court calendar, an official said it had been changed to restrict access to information that was erroneously disclosed.

Told Bellahouel’s name remained on the court’s computer docket, the official said, “It is? We’ll have to fix that, too.” Within hours, Bellahouel’s name was again underground.

Stories about Bellahouel’s case soon yielded tips about similar secrecy practices. In the high-profile federal case against Colombian drug lord Fabio Ochoa-Vasquez, defense attorneys claimed Ochoa’s prosecution was the result of a corrupt government “program” to induce major Colombian drug traffickers to surrender by selling them advance “sentence reductions.” Ochoa was indicted, they said, because he refused to go along and pay a $30 million bribe to a DEA informant.

Several federal drug defendants allegedly were 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 defendant Nicholas Bergonzoli, who was convicted, sentenced and imprisoned in total secrecy.

Was Bergonzoli’s case hidden to cover up government corruption, as Ochoa contends? Authorities have offered no explanation for such drastic secrecy.

Bergonzoli’s case was blacked out starting in 1999, and didn’t appear on the docket until two weeks after the first story about it ran in the Miami Daily Business Review last May.

Today, Bellahouel’s case is at the U.S. Supreme Court, where the justices have been asked to conduct a full review in hopes of opening it up. A coalition of media and legal groups assembled by The Reporters Committee for Freedom of the Press supported that effort in court papers filed in early January. The coalition also sought the Court’s permission to intervene in the case.

So, how widespread is the use of secret dockets? We don’t know. But we do know it’s not confined to Florida and the 11th Circuit. On the state level, secret dockets have been exposed in Connecticut and Maine involving sensitive civil matters. And the Federal Public Defender in Washington, D.C., told me 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.

Secrecy has always been an occupational hazard for journalists. A court super-seal, though, casts a total information eclipse that’s both extraordinary and pernicious.

To combat it, reporters who cover the courts must become more aggressive. Put judges and clerks on the spot by questioning them about secret dockets. Ask practicing attorneys if they know of any cases. Watch for clues that might flush out a case in your neighborhood courthouse.

Dan Christensen is the federal courts reporter for the Miami Daily Business Review.