corrente

For those who came in late, earlier today, we wrote (details back):

Nick Berg's parents filed suit in the Eastern District court in Philadelphia to get him out of an Iraqi jail (Berg et al v. Rumsfeld, back). And after they filed the suit, the very next day Nick Berg was released from jail. Coincidence?

I got the docket number and other search information for the case, and alert readers Xan, Enrico, and upyernoze couldn't find the case on the electronic court filing system for United States District Court, Eastern District of Pennsylvania—although the filing declaring the case moot (presumably because Berg had already been released) was there. Question:

Can an alert reader with authority on the Federal District Court system clarify whether the missing copy of the lawsuit is a cause for concern?

Quite possibly. And there may be cause for concern.

Alert reader Jennifer has a friend who is a lawyer, and she sent me the following article, which I excerpt here. (The article is behind the green door, so thank heavens the fair use doctrine still holds). The article describes the use of an illegal secret docket system used by the federal courts in Miami, mostly for drug cases, but now also for the "war on terror." If such a system is also at work in Philadelphia, it would explain why we have a docket number for Berg et al v. Rumsfeld, but no court filing to go with the number.

Miami Daily Business Review, Vol. 77, No. 232 May 9, 2003

COURT SECRETS: U.S. DISTRICT COURT IN SOUTH FLORIDA HIDES CIVIL, CRIMINAL CASES FROM PUBLIC

[Being kept secret] by Court Clerk Clarence Maddox's office is a civil case brought against a prison warden by a young Algerian man living in Deerfield Beach, Mohamed Kamel Bellahouel, who was once mistakenly suspected of involvement with terrorists. Neither the courts nor the U.S. attorney's office, however, acknowledges that dockets are being secretly maintained.

A 10-year-old decision by the 11th U.S. Circuit Court of Appeals in Atlanta -- U.S. v. Valenti -- forbids the use of so-called dual dockets in which some matters are held back from the public. "The government has convinced judges in this court to use the same type of dual docketing system' prohibited by Valenti," said [Miami super-lawyer and Rush Limbaugh defender Roy] Black in a recent court filing.

The law
Under federal law, even matters that are properly sealed by a district court judge aren't supposed to be hidden completely from view. Says Local Rule 5.4: "Unless otherwise provided by law, court rule or court order, proceedings in the U.S. District Court are public and court filings are matters of public record." There's even a form for judges to close individual filings from public view, "Order Re: Sealed Filing." But there are no provisions for sealing the entire docket of a case, or sealing individual docket entries themselves.

Several defense attorneys interviewed for this article said there is no law or rule issued before or after the attacks of Sept. 11 that could justify the sealing of dockets in cases involving terrorism, immigration or anything else in the district court or in higher courts. That includes the Classified Information Procedures Act,

Invisible
There are at least two completely invisible cases on the secret docket of the Southern District of Florida. One is the criminal case in federal district court in Miami against Colombian businessman and imprisoned drug dealer Nicholas Bergonzoli. A federal grand jury in Bridgeport, Conn., indicted Bergonzoli on a conspiracy to import cocaine charge in October 1995. That court's docket shows the case was transferred in March 1999 to Miami, where it was given a case number, 99cr196, and assigned to then-Chief Judge Edward B. Davis, who has since retired. Once the case landed in Miami, though, it seemed to vanish. Court dockets accessible to the public don't include Bergonzoli's name.

And a computerized search for Docket No. 99cr196 on the PACER electronic docket system yields the reply "no matches found." But the Review has learned that Bergonzoli, now 39, was convicted

This is just like to our experience with Berg et al v. Rumsfeld. The docket number exists ("2:04cv1497"); but there's no court filing to go with it.

Traces of case removed
A second case kept completely out of the South Florida sunshine is an apparent habeas corpus petition stemming from an immigration detention case brought by the Algerian, Mohamed Bellahouel.

Again, like Berg et al v. Rumsfeld.

[Bellahouel] was detained for five months on skimpy evidence of ties to the Sept. 11 terrorists. As first reported in the Daily Business Review in March, Bellahouel was a waiter at a Middle Eastern restaurant in Delray Beach, where he apparently served food to some of the Sept. 11 hijackers who dined at the restaurant. A Delray Beach movie theater employee told the FBI she thought she saw Bellahouel go into the theater with one of the hijackers. As a result, in October 2001, he was detained at the Krome Processing Facility in southwest Miami-Dade Bellahouel, who lives in Deerfield Beach, later was hauled before a federal grand jury in Alexandria, Va. -- apparently the same grand jury that investigated the so-called 20th hijacker, Zacharias Massaoui. Bellahouel has since been released on a $10,000 bond. But his case has rolled along in secret. Sealed proceedings of an unknown nature took place March 5 before a three-judge panel of the 11th U.S. Circuit Court of Appeals sitting in Miami. Bellahouel's case surfaced briefly because of a court clerk's mistake. Later, the Review found, a court calendar and the 11th Circuit's computerized docketing system in Atlanta were altered to remove any trace of Bellahouel's case from the public record. Information on why the appellate court heard the case and whether it has ruled is not publicly available. Federal Public Defender Williams and her chief of appeals, Paul Rashkind, were present at the sealed appellate hearing in March and represented Bellahouel. They don't acknowledge representing Bellahouel and won't discuss the case at all. The Review has asked each of the 11th Circuit judges in the case -- Stanley F. Birch Jr., Ed Carnes and visiting Judge Procter Hug Jr. of the 9th Circuit -- to unseal Bellahouel's case and any opinion. There has been no response.

How secret system works
Further evidence of a secret docket and the human dynamics behind it comes from a once-sealed transcript, recently uncovered by Black, [in which] then-prosecutor Theresa M.B. Van Vliet asked Chief U.S. Magistrate Ann Vitunac in West Palm Beach to seal proceedings as well as any evidence the hearing ever happened. ... "We will hold those tapes, not docket this proceeding," Vitunac said. "And my order at this moment is oral and to be put in writing at a later date." [Like the 32nd of Never?] Seven months passed before the court disclosed in the public docket that a hearing regarding Sanchez-Cristancho was held that day.

Did the Honorable Mary A McLaughlin (the judge in Berg v. Rumsfeld, back succumb to the same human dynamics?

We don't know. But we certainly need more information.

Readers! Can anyone give us assurance that the disappearance of Berg et al. v. Rumsfeld from the records of the Eastern District Court of Pennsylvania has a legitimate explanation? That the original filing for a moot case might be removed from the system, for example? That it's not the result of a secret docket?

Philadelphians! Can anyone forward Corrente a copy of the filing?

NOTE The Naples News, via AP has more on secret dockets, and the Mohamed Bellahouel case.