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In the belly of downtown Miami’s sprawling federal court complex, there’s a large, walk-in vault kept by the court clerk that few people have ever seen. Those who have seen it say it has row upon row of red file folders. The red folders are embossed with the word “sealed.” Inside the folders are the court’s secrets, including grand jury records, documents with the names of confidential informants and trade secrets. Those matters have been kept off the public record by judges who ordered them sealed in accordance with either local court rules or specific statutes. This year, however, the Daily Business Review reported on two cases in the U.S. District Court for the Southern District of Florida that involve a wholly different and — to many judges and lawyers — a more disturbing brand of secrecy. Some have dubbed these cases supersealed. One involves a terrorism-related investigation and a habeas corpus petition; the other is a narcotics case. The secrecy in these two cases goes well beyond the red file cases in that Miami court vault. Perhaps more importantly, the secrecy in these two cases was put into place without any explicit legal process or criteria established by Congress or the Supreme Court. In one case, the secrecy was imposed over the objections of one of the parties. In both cases, the public court docket and court record contained no party names, no facts, no judge, no attorneys and no documents that were publicly accessible. Even the case numbers were confidential. And for the one party who objected, he and his attorney were placed under gag orders. While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. It makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access to the docket to assure themselves as to what documents actually were filed with the court. The terrorism-related case only came to light because of lapses by court clerks in maintaining secrecy; the drug case was revealed by a defense lawyer in a related case. Last year, U.S. District Judge Paul C. Huck sealed the civil habeas corpus case of Deerfield Beach, Fla., resident Mohamed Kamel Bellahouel and ordered it kept off the public docket. Unlike in standard sealed cases, Huck never issued any formal order to keep the case secret. Neither did the 11th U.S. Circuit Court of Appeals in Atlanta, which upheld Huck’s actions. But the only way to know even that much is to read Bellahouel’s appeal of those secrecy rulings, which is now before the U.S. Supreme Court in a heavily censored filing. The justices have asked Solicitor General Theodore B. Olson to respond to Bellahouel’s appeal by Wednesday, though it’s likely the government will seek an extension. The other case of supersealing is that of Nicholas Bergonzoli, who was convicted last year of drug conspiracy, sentenced to 39 months and ordered to prison by U.S. District Judge Patricia A. Seitz in Miami. There was no public record or docket entry on Bergonzoli’s case or sentencing until two weeks after the Daily Business Review published an article in May about the case. Later that month, U.S. District Judge K. Michael Moore signed an order that put Bergonzoli’s case on the public docket and unsealed most of its documents. Experts say that the extreme secrecy in these two cases — apparently imposed without legally accepted processes and criteria — is dangerous for both those involved in litigation and for the public. Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions. Why the federal judges involved in these cases — Judge Huck; Judge Seitz; and the three appellate judges who voted in secret last March to keep Bellahouel’s case sealed, Stanley F. Birch Jr., Ed Carnes; and Procter Hug Jr. — were willing to impose such extreme secrecy is unclear. They aren’t commenting publicly. But some South Florida lawyers say federal judges nationally are being overly influenced by U.S. Attorney General John Ashcroft and his national security-oriented Justice Department. “The courts have been much too deferential to the executive branch by simply accepting prosecutors’ representations that no information must get out,” said Thomas R. Julin, a First Amendment lawyer who is a partner at Hunton & Williams in Miami. The Bellahouel case in particular has elicited shock and criticism from veteran federal judges and attorneys in South Florida who are not involved in either supersealed case. They say they’ve never seen cases handled this way before. “I have signed sealing orders, but I’ve never signed an order that a case would be kept totally from the public,” said Judge James Lawrence King, who joined the U.S. District Court bench in 1970. “There are any number of reasons, properly established, that I would rely on to seal certain matters, but not forever,” said Senior U.S. District Judge Shelby Highsmith of Miami. “Not in a way that hid their existence.” Sanford Bohrer, a First Amendment lawyer and partner at Holland & Knight in Miami, said that in these secret docket cases, “there aren’t any standards [for sealing] that I’m aware of. If there are, we don’t know if they’re being followed.” Neither Chief Southern District Judge William J. Zloch nor Clerk of Courts Clarence Maddox returned calls seeking comment for this article. COUNTER TO TRADITION These two secret South Florida cases are unusual, but they apparently aren’t unique in the federal court system nationally. In Washington, D.C., the federal court uses a secret docket to hide the existence of cases in which lives of cooperating witnesses who plead guilty to crimes may be in danger, Federal Public Defender A.J. Kramer said in an interview. Pleas are taken and sentences are handed down in secrecy, and there is no adjudication of guilt on the public record, he said. “There are definitely cases here that don’t show up on the docket,” Kramer said. “We agree to them because we feel that our clients would be in danger if their cooperation was on a public record.” Still, such cases run against the U.S. judicial system’s long tradition of openness. To remove a matter from public view, the courts have consistently said, there has to be a strong justification. Over the past three decades, access cases regarding court proceedings and records have taken twin tracks. In 1978, in Nixon v. Warner Communications, the Supreme Court first articulated a common-law right of access to court records. Two years later, in Richmond Newspapers Inc. v. Virginia, the high court declared a public right of access to criminal trials based on the First Amendment. At the 11th Circuit, the main precedent for maintaining open court records is a 1983 decision, Newman v. Graddick. The ruling, similar to decisions in other circuits, established a public right to attend civil judicial proceedings relating to the incarceration of prisoners. It also recognized that right is incomplete without access to court records as well. Even so, federal judges sign sealing orders every day at the request of prosecutors, criminal defendants and civil litigants in cases where someone believes that certain facts need protection. Reasons include national security, personal safety and privacy, and trade secrets. To achieve secrecy, judges impose protective orders that gag litigants and seal court records. And unless it’s a case the media are interested in, there’s typically little debate and no public notice. While the Florida Rules of Judicial Administration provide standards for sealing records in state cases based on the state constitution, there is no parallel rule in the federal system. According to Julin, the generally accepted legal view is that there is no constitutional right of access to federal judicial records. “The general view is that there is a common-law right and that that right simply requires courts to balance the interests that are asserted,” he said. The Southern District of Florida, however, has a formal policy on filing matters under seal. Local Rule 5.4 says attorneys who want a sealing order must tell the court, in secret, what they want sealed and spell out a “reasonable basis for departing from the general policy of a public filing.” “It’s a matter of [judicial] discretion, bounded by the notion that you can’t just do it for any old reason,” Julin said. The reality in federal courts in South Florida and elsewhere is that the rules governing federal judicial decisions to impose secrecy aren’t hard and fast. Often, judges’ decisions turn on procedural rules that require a balancing of competing interests and a showing of “good cause” to maintain documents under seal. Such decisions vary from case to case and judge to judge, South Florida lawyers say. OTHER SECRET AVENUES Sealing orders aren’t the only way courts help keep secrets. For example, the U.S. Foreign Intelligence Surveillance Court, created by Congress in 1978, is a special, secret court composed of seven federal district judges from around the country who are appointed by the chief justice. In closed proceedings, FISA judges review applications by the Justice Department to conduct electronic surveillance to collect foreign intelligence information. The attorney general must personally approve all applications and give the court specific reasons sufficient to establish “probable cause” that the target of the surveillance is a foreign power or foreign agent. All of FISA’s records and files are sealed. Another secrecy procedure is spelled out in the federal Classified Information Procedures Act. It provides a process by which the federal government and the federal courts give criminal defendants access to sensitive evidence from government files or witnesses. Under CIPA, defense attorneys who want such access must agree to be bound by certain rules and obtain security clearance. Even in national security cases, a judge must be specifically convinced of the existence of an “obvious and imminent” threat to the administration of justice to overcome the presumption of openness that attaches to court proceedings, said Sam Terilli, a former general counsel for the Miami Herald and managing partner at Ford & Harrison in Miami. “That’s the safeguard,” Terilli said. “If the government says [secrecy] is required, it’s put to the test and the judge evaluates the evidence. You win some, you lose some, but at least you’ve had your day in court and there’s an order on the record and people know that something has been done in secret. When you have a secret docket, that’s not been done.” Julin agreed. “If a motion to seal is itself filed under seal, it defeats the purpose of the system and undermines the credibility of the courts,” he said. The cases of Bellahouel and Bergonzoli depart from law and tradition in a fundamental way, several experts said. Mohamed Kamel Bellahouel, a 34-year-old Algerian-born veterinarian, filed his habeas petition in U.S. District Court in Miami during his five months in federal custody in 2001 and 2002. He was detained without bond after the Sept. 11 terrorist attacks. Federal investigators say he was arrested because he served meals before the attacks to some of the Sept. 11 hijackers at a Middle Eastern restaurant in Delray Beach, Fla., and he allegedly watched a movie with one hijacker. Bellahouel was not charged with a crime, but was transported to Virginia while in custody to testify before the grand jury that indicted the so-called 20th hijacker, Zacarias Moussaoui. He was released in March 2002 after FBI agents apparently concluded that he was not a threat. Authorities allowed him to post a $10,000 immigration bond, related to charges that he overstayed his student visa issued in 1996. Even after being released, Bellahouel continued his legal challenge to the secret handling of his case. Meanwhile, he faces possible deportation in the immigration proceedings. His case proceeded in secret until last March when clues to its existence, unintentionally left on the public record by court clerks in Miami and Atlanta, were found and reported by the Daily Business Review. During the summer, Bellahouel appealed to the Supreme Court after his efforts to open up the case were rebuffed by the lower courts. His petition for certiorari is publicly listed only as M.K.B. v. Warden, et al. The heavily redacted filing states that Judge Huck and the 11th Circuit judges must have decided on their own to seal the case, because neither the government nor Bellahouel requested it. Bellahouel’s attorney, Paul Rashkind, chief of appeals for the federal public defender’s office in Miami, argued that courts aren’t supposed to close access to such cases unless a “compelling government interest” is at stake. And judges who deny access must explain themselves in an order. But neither Judge Huck nor the 11th Circuit panel ever issued such an order or offered “any articulation of compelling circumstances to justify it,” Rashkind wrote. “The failure to give notice, hold a hearing, and to make articulated findings is an abuse of discretion and reversible error,” the petition said. To get a full hearing, at least four justices must agree to take the case. “We’re all supposed to be following the same rules, and the judges are supposed to try to apply them the same way,” said Holland & Knight’s Bohrer. “The problem here is that because there are no [explicit] standards, everybody may be using a different standard. We don’t know because everything is secret.” A friend of the court brief filed Nov. 3 by the Reporters Committee for Freedom of the Press accused the 11th Circuit of approving “a drastic departure” from judicial norms by Judge Huck. “The district court’s failure to issue a sealing order, make findings, explore less restrictive alternatives, or give the public an opportunity to be heard constitutes an egregious violation of well-settled law,” the brief said. The brief by the Reporters Committee cites nearly a dozen prior court cases that, in its view, describe what judges must do before closing a proceeding or sealing a document. Judges must make specific findings about why secrecy is necessary, consider alternatives to secrecy and provide public notice on proposed closings, said the brief. On the issue of public notice, the brief cites a 1993 decision by the 2nd Circuit, holding that courts must provide notice on public dockets of hearings to close proceedings. In addition, the Reporters Committee brief asserts a “presumptive right” to inspect and copy court records in Bellahouel’s case. To support that claim, the brief cited the 11th Circuit’s Newman v. Graddick. But Julin argues that the Supreme Court never established such rights regarding civil judicial proceedings such as Bellahouel’s habeas case, and that the proposition that judges must articulate findings or provide public notice before sealing records is not uniformly accepted. “It very much depends on the judge,” he said. LEEWAY TO FIGHT TERRORISM While a number of South Florida lawyers and federal judges are dismayed by the two identified cases of supersealing, one commentator argues that law enforcement authorities should be allowed broad leeway to use confidential court proceedings to combat terrorism. Paul D. Kamenar, senior executive counsel for the conservative Washington Legal Foundation in Washington, D.C., argues that Supreme Court review of the lower-court secrecy orders in the Bellahouel case is unnecessary because Congress can take action if the courts tilt too far in favor of national security over openness and public accountability. “Our position,” Kamenar said, “is that the courts should weigh and balance security interests with a need for openness in judicial proceedings.” A Republican spokesman for the House Judiciary Committee declined to comment on the court secrecy issue. Kamenar also argues that the government may have come across sensitive national security information in the Bellahouel case that needs to remain secret. “The mere fact that [Bellahouel] has been released doesn’t mean there’s not significant information that came out during proceedings that we don’t know about,” he said. “And it doesn’t mean the government has a lesser interest in keeping that under wraps.” But prominent First Amendment lawyer Floyd Abrams, a co-counsel to The New York Times in the landmark Pentagon Papers case, said he was unaware of any previous case in which the right of access to court information was litigated in secret, as it has been in the Bellahouel case. “That tells a story of its own — secrecy breeds more secrecy,” said Abrams, a partner at Cahill Gordon & Reindel in New York City. “That is one of the reasons it must be resisted.” “When the government classifies things like that, they’re usually trying to cover up their own mistakes,” said Abner J. Mikva, who has served as a Democratic congressman, chief judge of the U.S. Court of Appeals for the D.C. Circuit and a top aide in the Clinton White House. MISTAKES WERE MADE Indeed, a government cover-up for its mistakes is precisely how Miami attorney Roy Black explains the government’s sealing of the case of Nicholas Bergonzoli. In court papers, Black, who represents convicted Colombian drug lord Fabio Ochoa, identified Bergonzoli as an “intermediary” in an alleged U.S.-backed “program” to induce major drug traffickers such as Ochoa to surrender by selling them advance “sentence reductions.” The defense alleged that Ochoa was indicted because he refused to pay. Ochoa has filed an appeal to the 11th Circuit, based in part on the argument that his defense was hampered by the secrecy in the Bergonzoli case. He claims that secrecy blocked effective access to a potentially important defense witness who could testify about the government’s corrupt sentence reduction scheme. But the secrecy in the Bergonzoli case also could stem from concerns about Bergonzoli’s personal safety. A source familiar with the case said that the murderous reputations of the defendants in the Ochoa case and related cases were the main reason for keeping Bergonzoli’s case under wraps. If that’s true, Bellahouel’s petition to the Supreme Court highlights a broader public policy issue than does the Bergonzoli case. It reminds us that there is little information publicly available about the 1,200 young Arab and Muslim men who, like Bellahouel, were rounded up in relative secrecy by the Department of Justice after the Sept. 11 terrorist attacks. “At this point, it is impossible to judge whether [Bellahouel] was legitimately detained, or whether he was the victim of racial or ethnic profiling,” says the amicus brief of the Reporters Committee. “There may, in fact, be legitimate reasons for the government’s actions … but without any ability to observe the proceedings, the public and news media cannot be blamed for being skeptical.” Such skepticism seems unlikely to dissipate anytime soon. “For the public to have confidence that the judiciary is doing the right thing, it has to see what it is doing,” Thomas Julin said. “Without open access to files, there’s absolutely no safeguard against abuse.”

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