http://www.rcfp.org/secret-justice-secret-dockets/discovering-secret-dockets

Reporters Committee for Freedom of the Press

Reporters check court dockets to find out what cases have been filed in courts across the country. The docket reveals the case number assigned by the court, the parties’ names, and a brief entry of each document filed or action taken in the case. Normally, all of this information is public record and can be obtained either from the court clerk’s office, the court’s public inquiry computer terminals, the court’s Web site, or through PACER, an electronic public access service where federal court docket information can be accessed for a fee. The information on the docket is evidence that a particular case exists and allows someone to track the case through the judicial system.

According to a survey by The Reporters Committee for Freedom of the Press for this guide, federal courts and many state courts allow for “super-secret” cases, which never appear on the public docket or are hidden using pseudonyms, such as “Sealed v. Sealed” or “John Doe v. Jane Doe.” Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.

Terrorism “outside the orbit”

The most recent examples of secret dockets involve cases against accused terrorists. On May 1, Iyman Faris pleaded guilty to providing material support to al Qaida, including researching ultralight airplanes, procuring lightweight sleeping bags, plane tickets and cell phones, and assisting in a plan to destroy the Brooklyn Bridge for the terrorist organization. But his arrest, indictment and, ultimately, his plea bargain with the Justice Department proceeded in absolute secrecy.

Faris’ case may have remained a secret were it not for two Newsweek reporters, Michael Isikoff and Mark Hosenball, who discovered through intelligence documents that Faris was suspected of working for key al Qaida operative Khalid Shaikh Mohammed. In a June 18, 2003 article, the reporters speculated whether Faris was on the run, had disappeared or had been captured. For individuals such as Faris, there is “a new category that seems to be evolving outside the orbit of the criminal-justice system,” the Newsweek reporters wrote.

Only after Newsweek reported on Faris did Attorney General John Ashcroft reveal that Faris had pleaded guilty to terrorist charges more than a month earlier. The Justice Department denied that the Newsweek story had anything to do with Ashcoft’s June 19 press conference in which he first announced the capture of Faris and his plea agreement.

“Our need to keep it secret had dissipated,” said Mark Corallo, a spokesperson for the Justice Department.

The Justice Department will not divulge how many other individuals are being held in secret on terrorism charges. “We have been very consistent in not discussing exact numbers,” Corallo said. “Even though it seems like innocuous information, it is not.”

Corallo claimed that providing numbers of individuals arrested on terrorism charges would “give a road map to the terrorists.” Terrorist organizations could determine how many terrorists the Justice Department has captured and monitor the government’s progress, he explained.

But the government never has explained how a terrorist operative could be in U.S. control for months and why the terrorist organization with which he is allegedly involved could not determine that its operative was missing, said Lee Gelernt, an attorney for the American Civil Liberties Union.

This debate raises the question: Is such secrecy really needed to protect national security or is it being used to protect the government from scrutiny?

It was only through a court clerk’s mistake that the Miami Daily Business Review discovered the case of Mohamed Kamel Bellahouel, who apparently filed suit in a federal court in Florida against Monica S. Wetzel, a former warden at the Federal Correctional Institution in South Miami-Dade County.

According to the Business Review, Bellahouel “was once mistakenly suspected of involvement with terrorists” and appears to have filed a petition seeking freedom from unlawful imprisonment.However, the public docket will not reveal that Bellahouel’s case even exists or why his case is pending before the U.S. Court of Appeals in Atlanta (11th Cir.).

While no one knows how many cases such as Bellahouel’s exist, secret dockets are not limited to cases involving terrorism.

Secret crimes

Attorneys for alleged Columbian drug trafficker Fabio Ochoa-Vasquez discovered an entire system of “dual docketing” in U.S. District Court in Florida that deprived them of information for their client’s defense.

Ochoa alleges that a government informant bribed him and that for $30 million he would receive no more than a five-year sentence. Ochoa also alleges that another government informant told him that a U.S. program existed in which drug traffickers could pay their way to a reduced sentence and that two traffickers, Nicholas Bergonzoli and Julio Correa, had already participated in the program.

Even though Bergonzoli pleaded guilty to importing cocaine and an attorney acknowledged representing Correa in “a cooperation agreement with the government,” the Florida federal court docket does not reflect that these cases even exist, according to attorneys for Ochoa, who in May 2003 filed a brief requesting the elimination of the “dual docketing” system and disclosure of sealed proceedings to the Eleventh Circuit.

Not only does this type of secrecy deprive Ochoa of his due process rights, it is a violation of the First Amendment and common law rights of access to judicial proceedings, Ochoa’s attorneys argued.

The use of secret dockets by the federal Southern District of Florida conflicts with a decision issued by the Eleventh Circuit ten years earlier in United States v. Valenti. In that case, the government charged criminal defense attorney Charles Corces and state prosecutor John Valenti with conspiring to obtain favorable treatment for criminal defendants who paid Valenti. After the two were indicted, the state dismissed the case; however, a secret docket prevented the public from learning about closed pretrial bench conferences and the filing of in-camera pretrial motions. A reporter from the St. Petersburg Times learned about the secret docket when he observed a closed-bench conference and sought access to the transcripts.

On appeal to the Eleventh Circuit, the court held that the “maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings.”

According to Ochoa’s attorneys, this holding “is consistent with every circuit that has decided a similar question.”

However, while the law disfavors secret dockets, they are still used by federal and state courts to hide sealed cases. When an entire case is sealed, rather than individual documents, federal courts either remove the case from the public docket or replace the parties’ names with anonymous pseudonyms such as “Sealed v. Sealed.” At least 46 U.S. district courts across the country allow for these types of secret docketing procedures. Such a system makes it virtually impossible for the public and press to know what types of cases are being sealed or to challenge the constitutionality of the sealing orders.