MIAMI FEDERAL COURT HAS 'SECRET DOCKET' TO KEEP CASES HIDDEN FROM PUBLIC

A secret docketing system hiding some sensitive Miami federal court cases
from public view has been exposed and is being challenged in two higher
courts, including the U.S. Supreme Court.

"We don't have secret justice in this country," said Lucy Dalglish,
executive director of The Reporters Committee for Freedom of the Press. The
Washington-based journalists watchdog group is asking the appellate courts
to open up two Miami federal cases it says were litigated in secret.

The group has filed briefs in the Supreme Court and in the 11th U.S.
Circuit Court of Appeals in Atlanta. Representing two dozen media and legal
organizations, it is mounting the stiffest challenge yet to a practice
legal experts say violates free speech rights and ignores established court
decisions favoring open records and courtrooms.

The legal challenges are emerging as the higher courts are taking a long
look at the government secrecy surrounding the detention of more than 1,000
Muslim and Middle Eastern men in the days after the Sept. 11, 2001, terror
attacks.

"In recent months, it has become evident that the U.S. District Court for
the Southern District of Florida maintains a dual, separate docket of
public and non-public cases," Dalglish wrote in a brief filed late last
month in the 11th Circuit appeal of convicted Colombian drug lord Fabio
Ochoa Vasquez.

In its Supreme Court brief, the media group called the secret jailing of an
Algerian-born waiter "perhaps the most egregious recent example of an
alarming trend toward excessive secrecy in the federal courts, particularly
in cases that bear even a tangential connection to the events of Sept. 11."

Mohamed Kamel Bellahouel, 34, of Deerfield Beach, was arrested for a
violating his student visa a month after the terror attacks. Although he
sought his release in the District Court and appealed to the 11th Circuit,
no public record of his case existed until his appeal to the U.S. Supreme
Court. The media group last week asked to join the case as a party, a
request the high court rarely grants.

In Ochoa's 11th Circuit appeal, the media group is challenging a secret
plea bargain and sentencing involving Nicolas Bergonzoli, a Colombian drug
smuggler who had business dealings with Ochoa. The case suggests the secret
docketing system predates the Sept. 11 attacks.

Both men were potential witnesses.

Bergonzoli was indicted in Connecticut for drug trafficking in 1995. Four
years later his case, still open, was transferred to Miami. No record of it
existed until Ochoa's lawyers were able to unseal parts of the file in May.
At the time, Ochoa was on trial and prosecutors were resting their case.
Bergonzoli entered a secret plea bargain and was never called to testify at
Ochoa's trial.

Neither case appeared on the court's public docket, where it would have
been assigned a number and scanned into a computer file. As a result, the
public had no way of knowing they existed. Hearings were conducted behind
closed doors, and all documents and legal motions were filed under seal.
The sensitive court papers were kept separately in a vault at the court
clerk's office in Miami, according to attorneys familiar with the practice.

U.S. District Judge William J. Zloch, chief judge for the South Florida
district, and Clerk of Courts Clarence Maddox were out of the office and
unavailable for comment on Wednesday.

Attorney Floyd Abrams, a nationally recognized expert on free press and
court access issues, said sealed documents and closed courtrooms are
nothing new and are sometimes necessary to protect national security or
investigations. But, he said from his New York office, he was "very
surprised" to learn about cases that were fully litigated with no public
record.

"Without public docket sheets, there is no way for the public to even know
that a case has been brought or resolved," Abrams said. "It's a significant
infringement of the genuine public interest in knowing what is going on in
its judicial system."

Bellahouel's case accidentally came to light when a clerk's mistake made
his name and case number public for a few hours. A reporter for The Daily
Business Review, a South Florida legal newspaper, picked it up.

According to the newspaper, the case to detain Bellahouel was laid out in
an FBI agent's affidavit. The FBI reportedly said Bellahouel served two of
the Sept. 11 hijackers, Mohamed Atta and Marwan al-Shehhi, at a Middle
Eastern restaurant in Delray Beach. He also reportedly was seen at a nearby
movie theater with a third hijacker, Ahmed Alnami.

Bellahouel was held at Krome detention center in southwest Miami-Dade
County, testified before a federal grand jury in Virginia, and was released
in March 2002 on a $10,000 immigration bond.

Bellahouel's appeal to open his files was denied by the 11th Circuit, which
issued its decision -- under seal -- on March 31. Attorneys involved in the
case are under a gag order and can't comment.

Kathleen M. Williams and Paul M. Rashkind, Bellahouel's federal public
defenders in Miami, then turned to the U.S. Supreme Court, where their
papers refer to their client by his initials, MKB. The petition, the first
official public record of the case, is heavily edited, with blank pages and
huge gaps of white space.

"The world has changed since 9/11," the lawyers argue. "But the common-law
and First Amendment rights to discuss and debate those changing events
remain alive ... The blanket sealing utilized in this case and appeal,
however, hides everything."

The Supreme Court asked the government to defend the secrecy. Late Monday,
Solicitor General Theodore B. Olson filed the government's response --
under seal. The Supreme Court has not yet decided whether to take the case.

Ochoa's lawyers, G. Richard Strafer and Roy Black, had heard rumors about
Bergonzoli, ran a name search and discovered a federal case filed in
Connecticut. The file included a letter to the court clerk, transferring
the case, and a new Miami docket number. But when Strafer plugged the
number into the court's computer system, he found nothing. The court clerk
told him no such case existed, he said.

He found Bergonzoli in a federal prison, serving 37 months.

Strafer and Black have long argued that government secrecy hampered Ochoa's
defense. Now, the American Civil Liberties Union and the media group,
representing The New York Times, The Washington Post, ABC, CNN and other
news organizations, are objecting, saying it hampers their ability to
inform the public.

"We're happy that the cavalry is coming to the rescue," Strafer said. "This
is a dangerous precedent. The media and the public should be alarmed that
people can be sent to prison without anyone even knowing they had a case."