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Judicial secrecy in terror probe 'unprecedented'

By The Associated Press

10.05.01

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SAN DIEGO — The U.S. terror investigation that has hauled in hundreds of Middle Easterners and Arab-Americans is being conducted with closed court hearings and sealed documents on a scale legal experts say may be unprecedented.

As part of what Attorney General John Ashcroft has called the biggest criminal investigation in U.S. history, federal authorities have detained more than 500 people without releasing the paperwork that usually accompanies nearly any type of court proceeding.

A combination of federal laws and legal precedent allows authorities to detain witnesses, seal search warrants and close hearings on national security grounds or to protect grand jury investigations — the two primary reasons cited for the judicial secrecy since the Sept. 11 attacks.

"It's not new," said Charles LaBella, a former federal prosecutor in San Diego and New York. "But on this scale, it's unprecedented."

While little is known about the secret proceedings, some have dealt with immigration issues, and others have been hearings to determine if some people can be detained as material witnesses to ensure they give testimony to a New York grand jury investigating the attacks. LaBella said evidence hearings related to the attacks also may have been kept secret.

Among the proceedings that have been closed to the public was a hearing last week in San Diego to determine whether three college students could be held as material witnesses in the terror case. The judge cited national security, but sealed even his order justifying the secrecy.

The secrecy has raised civil liberties concerns in some quarters.

"One of the things that this secrecy deprives you of knowing is just how far and energetically the government is biting into constitutionally protected activity," said Terry Francke, executive director of the California First Amendment Coalition.

A lawyer for the three men held in San Diego likened their detention to the sweeps for communists and sympathizers during the Red Scare of the 1920s. He complained that he was not even told where his clients were being held and was not permitted to contact them.

"I'm not even allowed to say whether they were in court," said lawyer Randall Hamud.

But some legal experts say the government so far remains on firm legal ground.

The legal underpinning for much of the secrecy is the Foreign Intelligence Surveillance Act of 1978, which allows the government to permanently seal warrants for national security reasons with a judge's consent, said Laurie Levenson, a former federal prosecutor and legal scholar at Loyola Law School in Los Angeles.

Some defense attorneys who normally would be quick to criticize the government have been cautious.

"I think we should have a healthy concern about what's going on, but it should be tempered by the fact that we still don't know the facts about the events of Sept. 11," said Mario Conte, executive director of Federal Defenders, which represents poor defendants in San Diego.

Investigators may also be using secrecy to trace e-mail via a host of Internet service providers. In Silicon Valley, home to many Internet companies, the government has filed about three dozen sealed legal filings since Sept. 11.

In the past few years, various aspects were kept secret in the case of Los Alamos scientist Wen Ho Lee, the 1993 World Trade Center bombing trial and the spy investigations of Aldrich Ames, George Trofimoff and Robert Hanssen.

But Erwin Chemerinsky, a professor at the University of Southern California who specializes in constitutional law, could think of no other time in American history when the government had used so much judicial secrecy in a criminal investigation.

"What's different here, so far as we can know, is the scale of the operation, the number of people involved," he said.

Jonathan Lurie, a professor of history and law at Rutgers University in New Jersey, agreed, but added: "This is a unique moment in our history and to expect that the old standards of due process are going to apply is naive."

Meanwhile, police in Boulder, Colo., have begun withholding personal information from publicly released reports on ethnic intimidation cases involving people of Middle Eastern descent.

The policy change comes in wake of the Sept. 11 attacks and is designed to help protect the victims, Police Chief Mark Beckner said yesterday.

"We also want to ensure that people feel comfortable in reporting incidents," he said.

The change took effect this week after Detective Cmdr. Joe Pelle told records clerks to remove identifying information from a report about a racially motivated crime at Fairview High School.

Federal law allows authorities to withhold some information if it is contrary to public interest and would invade one's personal privacy, police said.

First Amendment lawyer Tom Kelley said the department's policy is a matter of discretion and within the law.

"But there comes a time when it becomes a public interest, including the allegations being made and how they are handled by police," he said. "Once we get beyond the point where things are emotionally charged, the media may ask them to change it."

Since the attacks, police have received at least three reports of crimes directed at residents with ties to Afghanistan, Pakistan or the Middle East.

In one case, a 16-year-old Arab student at Fairview High received a note in his locker, threatening his life and accusing him of being a terrorist.

In another, someone placed two calls to the Islamic Center of Boulder on Sept. 20, addressing those at the center "people who wear the diapers on your head." The caller said, "We will hunt you out, we will burn you out and we will get you."

In a third case, Pelle said a longtime resident received a letter from her neighbors suggesting she might be a terrorist.

Beckner said records clerks would edit the relevant reports for an indefinite period.

Related

Federal court rebuffs newspaper's bid to open secret hearing
Assistant U.S. attorney wouldn’t say if proceeding for unidentified man was part of terrorist attack investigation.  09.20.01

Immigration courts open doors to some detainees' proceedings
Public hearings resume for people who authorities determined have no connection to Sept. 11 attacks.  11.01.01

Ashcroft: Religious, political groups could be watched
Attorney general says organizations suspected of engaging in terrorism may be monitored.  12.03.01

Ashcroft urges caution in release of public records
Bush administration changes policy, says agencies that legitimately turn down requests made under FOIA will have Justice Department’s backing.  10.17.01

ACLU sues N.J. counties for release of detainees' names
Lawsuit accuses officials of violating state's open-records laws by refusing to make public information on people jailed since Sept. 11 attacks.  01.23.02

Michigan newspapers sue to access immigration hearings
Lawsuits ask federal court to open deportation proceedings for founder of Islamic charity accused of funding terrorist activities.  01.31.02

Civil rights groups sue for data about detainees
Government secrecy in terror probe violates First Amendment 'right of access to records concerning judicial proceedings,' lawsuit claims.  12.06.01

Open-government advocates see 'epidemic of official secrecy'
Analysis No White House can arbitrarily withhold information and expect to maintain public confidence, says Federation of American Scientists' Steven Aftergood.  11.15.01

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