The sealing of court files involving the prosecution of Colombian paramilitary leaders, who have been extradited to stand trial in Washington on drug-trafficking charges, has drawn attention to a larger controversy regarding judicial secrecy in the United States, according to a recent report published by ProPublica and The Washington Post.
The report details that earlier this year, U.S. District Judge Reggie Walton blocked seven paramilitary leaders’ cases from public access, raising questions about the transparency of the American judicial system. The court’s surreptitious activity has also enraged many Colombians seeking justice for two decades of brutal crimes committed by paramilitary groups, the report said.
The controversy over sealed dockets goes beyond the Colombian cases. According to the report, a 2009 Federal Judicial Center study found that U.S. federal judges order thousands of cases to be sealed from the public each year, sometimes without providing any explanation for the order. Not surprisingly, this practice has become a major concern for many reporters covering U.S. courts.
“The essential implication is we can’t as reporters know exactly what’s going on in some of the highest profile cases,” said Chisun Lee, a reporter for ProPublica who contributed to the story. “This case is a perfect example of how secrecy may come into play precisely because the stakes are so high.”
A WNET/Thirteen reporter who also contributed to the story, Oriana Zill de Granados, said she discovered while developing a documentary on the larger paramilitary conflict in Columbia, titled “Women, War and Peace,” that the court files of several paramilitary leaders had disappeared from the judicial public records system at the federal court in Washington. This discovery led to the reporters’ further investigation into the issue of sealed dockets.
“It is likely we wouldn’t even know [the case files] existed if my partners … hadn’t been doing another story on the issue of Colombian paramilitary prosecutions,” Lee said. “If someone looked into it now, they would probably have no idea these people even existed in the judicial system.”
David Tomlin, Associate General Counsel for the Associated Press, believes this level of opacity in the courts is a disheartening departure from the system of “checks and balances” on power put forth in the U.S. Constitution.
“[Allowing] courts [to] deliberate in such secrecy that even the existence of entire cases is hidden away from public view is an extremely dangerous thing,” he said.
While Tomlin is concerned about the problem sealed dockets present for reporters, he believes the real threat is to the general public and the U.S. court system.
“It’s horribly risky for the defendants, whose fate is literally sealed, but it’s dangerous for the public and for the courts as well. Neither of them will be in a position to fulfill their roles in society to the extent that they could and should if the proceeding was open,” he said.
According to a Reporters Committee for Freedom of the Press investigation on secret dockets, both federal and state courts use various methods to hide these “super-secret” cases from the public, typically by replacing parties’ names with false ones, such as Sealed v. Sealed or John Doe v. Jane Doe, or even by removing the case from the public docket altogether. Although the press has become more aware of this practice in recent years, it is still unclear whether the trend of sealed dockets is on the rise.
“It’s almost impossible to say. There’s virtually no way to aggregate data on that question, according to the Administrative Office of the Federal Courts,” Lee said. A spokesperson for the office told Lee that no method exists for tracking sealed cases or obtaining the number of sealed cases from year to year, preventing researchers from being able to determine a directional trend. While the 2009 Judicial Center study has the most in-depth information about sealed cases, the data gathered came from only one year, 2006.
Despite the limited scope of the study, having special access to case information allowed federal researchers to scrutinize individual chambers and determine why certain cases were sealed, Lee said.
In order for a judge to be able to seal a case from the public, “extraordinary circumstances” must be apparent. Examples include if national security is at stake or if publicizing the case endangers the life of a witness, Lee said. However, when all details of the case are sealed, including the judge’s justification for ordering a seal, the public has no way of knowing whether it is legitimate, she added.
“Can we know that something improper is going on just because there’s a sealing order? No. There may be a really good reason for secrecy … and that’s one of the tensions the legal system lives with,” Lee said.
The Colombian case not only poses a problem for the American judicial system, but it also greatly undermines the United States’ position as one of the world’s strongest and most open democracies, according to Marc Chernick, associate professor with the Georgetown University Department of Government and the Center for Latin American Studies.
“It’s quite troublesome what’s happened,” he said. Chernick believes that the extradition of paramilitary leaders to Washington has short-circuited the prosecution of these soldiers for crimes against humanity in Colombia and has prevented whistle-blowers from shedding light on corrupt connections between paramilitary leaders and their country’s government.
Just as the extradition of soldiers has obstructed the judicial process in Colombia, these cases are providing a real challenge to the traditional separation of powers in the United States. Some believe that while it may often be important for certain cases to be sealed, the lack of public access to these court documents is cause for alarm.
“It’s a concern to some because the judicial branch is the most insulated of the three branches of government. It was designed that way in the Constitution for a reason,” Lee said. But while many believe it is beneficial to have a judiciary that is protected from political and public pressures, she said, the public’s ability to scrutinize the work of this powerful but isolated branch of government can seem especially crucial.
While the legitimacy of sealed dockets remains a question for some, others, like Tomlin, believe the courts already provide enough protection of confidential material, and that this recent trend of judicial secrecy is a step too far.
“There are ample means at the disposal of any court for protecting sensitive witnesses, sensitive testimony, sensitive information, documents, or other evidence from distribution when exposure would threaten other important rights or interests, and I can think of virtually no circumstances in which the very existence of a case is information that needs to be hidden from public view,” he said.