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The Justice Department has dropped its controversial demand that a liberal advocacy group pay a $373,000 research fee before Justice would respond to its request for information on how often the government has hidden court cases involving post-Sept. 11 immigrant detainees. But a Justice Department lawyer told a federal judge in Washington, D.C., last month that the government would have trouble responding to People for the American Way’s Freedom of Information Act request because sealing cases “in their entirety” is “not as rare as it seems.” The government lawyer, Marcia Berman, told U.S. District Judge John D. Bates that “many material witnesses were arrested, and in a lot of those cases they were just detained and never charged,” according to a transcript of the March 16 hearing. “But also in a lot of those cases, the government did ask for a proceeding or just an arrest warrant to be sealed.” PFAW has been trying to discover the extent to which the government has sought to hide legal proceedings involving immigrant detainees since Sept. 11. It hopes to publish a report about government secrecy efforts involving hundreds of unidentified detainees. The group has said its request was prompted by the secret case of Deerfield Beach resident Mohamed Kamel Bellahouel, an Algerian native and one of hundreds of men of Middle East origin who were detained without criminal charge by federal agents after the 2001 terrorist attacks on New York and Washington. In that case, first reported by the Daily Business Review in early 2003, 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. Bellahouel’s case only came to light because of lapses by court clerks in maintaining secrecy. 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 “supersealing” — removing a case from the public docket and placing it in an alternative, deep-cover docket. To date, the federal government has not said how many material witnesses were detained in the massive criminal investigation dubbed PENTTBOM, an FBI acronym for the Sept. 11 terrorist attacks. In 2003, after the Washington Post reported that 44 material witnesses had been detained, Assistant Attorney General Jamie Brown told the House Judiciary Committee in a letter that “fewer than 50″ people had been detained under federal material witness statute. But Elliot Mincberg, general counsel for People for the American Way Foundation, the group that has sued the Justice Department, said he thinks Berman’s remarks last month mean that even more persons have been held secretly as material witnesses. “The government has always refused to say the number of material witnesses,” Mincberg said. “The importance of this statement is that there may well be a lot of them being held.” Most interesting,” he added, was Berman’s statement that supersealing cases “isn’t all that rare.” Justice Department spokesman Charles Miller declined comment. But University of Miami associate law professor Ricardo J. Bascuas, who wrote a treatise on material witness detentions that’s being published this month in the Vanderbilt Law Review, said he is less certain about what Berman’s remarks mean. He said the remarks echo the “deliberately vague” remarks of other Justice Department officials who have said “as little as possible” about the matter. “If this turns out to be anything more than an exceedingly rare practice, then that would surprise a lot of people,” Bascuas said. “To me, it’s more of the same.” Before resigning from the Federal Public Defender’s Office in Miami in May 2003, Bascuas helped represent Mohamed Kamel Bellahouel. ‘STONEWALLING’ Bellahouel is among a handful of post-Sept. 11 material witnesses whose names have become public. He was detained for five months in 2001-2002 after agents found that he’d worked at a Delray Beach restaurant patronized by Mohammed Atta and other Sept. 11 hijackers, and may have watched a movie with one of them. Bellahouel was released without criminal charge. But while jailed, he filed a habeas corpus case that was completely hidden from the public by federal prosecutors and judges in Miami and Atlanta. A clerk’s error put it briefly on the court docket. PFAW participated in a coalition of media and public interest groups that sought unsuccessfully to convince the U.S. Supreme Court last year to hear Bellahouel’s appeal. PFAW made its initial Freedom of Information Act request while that effort was pending. “The government’s efforts to have this case sealed raises serious questions that should be promptly answered about how many other cases the government has sealed and turned into ‘secret’ proceedings,” Mincberg wrote in the FOIA request letter. The government’s response was to decline to disclose any information, citing federal privacy exemptions. An administrative appeal was also denied. Last August, PFAW sued the Justice Department in U.S. District Court in Washington, alleging that records about the secret detention of immigrant detainees were being improperly withheld. In January, a team of Justice lawyers led by Berman and Assistant Attorney General Peter D. Keisler responded by rescinding the earlier denial and requiring the $373,000 fee to process the request. Such a large fee was necessary, they said, because a difficult manual search was necessary to compile the information. The records PFAW seeks are not computer coded, the government said. PFAW called that fee requirement “outrageous.” Mincberg said his group regularly files such requests with federal agencies and never received a fee request like that. He called it “stonewalling.” But a Justice Department spokesman said that FOIA fees “are all based on how much work goes into getting the records.” DOJ’s fee demand, first reported by the Daily Business Review on Jan. 31, generated controversy. A New York Times editorial lambasted the fee demand as an abuse of the FOIA Act. DEAL BEING DISCUSSED The criticism apparently struck a federal nerve, and Justice changed tack. In a March 8 letter, Justice sidestepped the fee issue with a fresh denial of PFAW’s FOIA request. “After careful reconsideration … we have concluded that your request is overly broad and would require an unduly burdensome effort on the part of this agency to respond,” Justice Department official Marie A. O’Rourke wrote. Justice’s position meant that even if PFAW were to tender payment, DOJ still would not provide the information. Mincberg said Justice’s change in strategy was a delaying tactic likely caused by the cable network CNN’s decision to file a virtually identical FOIA request. As a media outlet, CNN would be exempt from the $373,000 research fee. Nevertheless, at Bates’ urging, Justice and PFAW are working on a deal that would find an economical way to compile at least some information that might be released, the transcript shows. Under one idea that’s being discussed, Justice would ask every U.S. Attorney in the country to have their aides identify every immigrant detainee case where the government made a request that the court docket be sealed from the public. PFAW also wants a geographic breakdown of where such cases were filed. But Berman told Bates last month “that may ultimately be a sticking point” because of “national security reasons.” Bascuas said “it’s strange the government says they’d have to come up with a list of cases manually, as opposed to that information already existing somewhere. It’s perplexing that they can’t tell the judge anything.” Meanwhile, the frequency with which the government goes to court to ask that cases be sealed in their entirety remains a question in search of an answer. “It seems to me that’s not an unreasonable question to ask our government, and we continue to ask it,” Mincberg said. The next court hearing is scheduled for April 21.

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