<<previous  |  index  |  next>>

VIII. Secret Proceedings

Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.
—Lord Acton (1861)¹⁹⁹

While grand jury secrecy is mandated by law . . . the determination to jail a person pending his appearance before a grand jury is presumptively public, for no free society can long tolerate secret arrests.      
—The Honorable Jed Rakoff, United States District Judge for the Southern District of New York, August 5, 2002²⁰⁰

 The Justice Department has sought, and usually succeeded in securing, court orders sealing all records and closing the courtroom doors in virtually all post-September 11 material witness proceedings. The courtrooms and documents have been inaccessible to families of the witnesses, the media, the general public, and even frequently the witnesses themselves. Of the seventy witnesses we have identified, there are no judicial arrest records available for sixty-two, and records in three of the remaining cases have been unsealed only because of government misconduct. The other five open records were available because the witness was held for a trial or the district court issued partially redacted or full opinions on the material witness proceedings. Material witness proceedings in post-September 11 counterterrorism investigations have rarely even appeared on the public docket. There were and continue to be no public records of most material witness arrests, even in the form of “John Doe” records. The Justice Department has rebuffed Congress’ repeated requests for information about material witness arrests, refusing to disclose the names, numbers, and details of these arrests.²⁰¹

Such secrecy is astonishing. It is inconsistent with longstanding principles of criminal justice and government accountability as well as withUnited States criminal justice history. Recognizing that public scrutiny is a crucial protection against government abuse, international human rights²⁰² and U.S. constitutional law call for public hearings when an individual’s freedom is being determined by a court or tribunal.²⁰³ Public hearings protect the rights of detainees and guard them against abusive or arbitrary proceedings. They also serve the public’s right to know what its government is up to and its interest in restraining possible abuses of government or executive power.²⁰⁴

Yet since September 11, the Justice Department has proceeded against material witnesses and others caught up in the investigation behind closed courtroom doors. As Human Rights Watch documented in “Presumption of Guilt,” and the ACLU set forth in a brief to the Supreme Court, post-September 11, the government arrested more than one thousand Muslim, Arab, and South Asian non-citizens of “special interest” in secret and closed the immigration proceedings against them, arguing that national security required the need for secrecy.²⁰⁵ In the case of the material witnesses, the Justice Department has claimed that national security as well as grand jury rules required secrecy.

As then Attorney General John Ashcroft explained:

There are other individuals … who are currently being detained on material-witness warrants. Those proceedings are being conducted under seal as related to grand juries and, therefore, the department cannot provide the number or identity of those individuals.

The department is also unable to provide any information about affidavits, motions, or other papers filed in grand jury proceedings.²⁰⁶

Justice Department officials buttressed their grand jury argument for secrecy with claims that secrecy was also required to protect national security. In refusing to disclose the details of material witness arrests to Congress, the Justice Department has reasoned that “disclosing such specific information would be detrimental to the war on terror and the investigation of the September 11 attacks.”²⁰⁷

The insistence on total secrecy when a witness has been arrested in connection with a grand jury proceeding is a major departure from the federal government’s past practice. For example, the government did not close the detention hearing for Terry Lynn Nichols, who was arrested as a material witness in connection with the grand jury investigation of the 1996 Oklahoma City bombing. In fact, the United States Attorney read the material witness warrant in open court.²⁰⁸ In addition, the material witness arrest of Nichols, as well as of Abraham Abdallah Ahmed, who was mistakenly arrested in connection with the Oklahoma City bombing, was publicly docketed and discussed at length in court opinions.²⁰⁹

It is not clear why the courts have tended to give such short shrift to the principle of public proceedings in the post-September 11 material witness cases. Grand jury jurisprudence does not support the argument that all material witness records be sealed. Grand jury rules only require secrecy for material witness records that pertain to “matter[s] occurring before a grand jury.”²¹⁰ Courts have traditionally interpreted this rule narrowly to cover only documentsthat reveal “the essence of what took place in the grand jury room.”²¹¹ Much of the information contained in the government’s applications to arrest material witnesses has had nothing to do with the grand jury room because the witness had not yet testified and, indeed, in a number of cases a grand jury had not yet even been convened when the witness was arrested. In addition, records and evidence concerning a witness’s potential flight risk are not necessarily relevant to “matters occurring” before a grand jury. Moreover, courts are required to balance arguments for secrecy against the right to a presumptively public detention hearing.²¹²

Nonetheless, most courts have acquiesced to the government’s insistence that all records and information pertaining to the material witness arrests be kept under seal. Courts have repeatedly rebuffed news organizations’ attempts to confirm whether witnesses were jailed, much less allow them to cover federal court proceedings that are usually open.²¹³ As one reporter who attempted to cover the detention of U.S. citizen James Ujaama commented:

It just made it extremely frustrating, really, impossible to write anything intelligent about what was happening to this [material witness] and why. To be in a situation where people who are holding a citizen in custody cannot even acknowledge that they are holding that person is frankly scary. I’ve been a reporter for twenty-two years, and I’ve never seen anything like that.²¹⁴

One case, known only as “MKB,” went all the way up to the Supreme Court without a docket number, public records, or even a legal opinion made public.²¹⁵ The lower court decisions were under seal. The Supreme Court refused to hear the case, in a one-line order denying the petition for certiorari.²¹⁶

Some courts, however, have rejected the government’s position. The U.S. District Court in Oregon closed the detention hearing of material witness Maher Mofeid Hawash but issued a redacted decision resolving Hawash’s challenges to his detention because “the specific, sealed grand jury investigation to which Hawash’s testimony relates will not be hindered by disclosing his identity, his arrest as a material witness or his detention status.”²¹⁷ The court further observed that “[t]o withhold that information could create [a] public perception that an unindicted member of the community has been arrested and secretly imprisoned by the government.”²¹⁸In addition, the court was careful to ensure key aspects of its decision to detain Hawash were public, finding these facts unrelated to grand jury matters.²¹⁹

In considering whether to release the material witness records of Abdallah Higazy, Judge Rakoff of the Southern District of New York held that when the principles of protecting grand jury secrecy collide with the principles of public criminal proceedings, courts should weigh in favor of disclosing material witness records because “no free society can long tolerate secret arrests.”²²⁰ According to the court, given the importance of the “public’s right to know and assess why someone is being jailed … sealing of matters relating to the arrest and detention must be limited to keeping secret only what is strictly necessary to prevent disclosure of what is occurring before the grand jury itself.”²²¹

Randy Hamud, who represented material witnesses Osama Awadallah, Mohdar Abdullah, and Yazeed al-Salmi in their material witness hearings in the Southern District of New York, believes the court worked under different rules in the closed proceedings.

Things go on behind those doors that would never happen in open court.

The government didn’t show me the warrant or evidence. It’s crazy what happens behind closed doors. The judge threw the local counsel out of the courtroom—Abdeen Jabaraul Jabarah. It’s in the transcript. … It was troublesome because I was appearing from out of state and Jabarah was the in-state counsel.

You do not get justice behind closed doors. A judge would never do that in a hearing. I was in a twilight zone.

I pointed out clearly how Awadallah was being beaten up and that there were bruises on his body. I told the judge he was beaten and the judge just said, “He looked fine to me.”²²²

In arguing that U.S. citizen Mujahid Menepta needed to be detained as a material witness, federal prosecutors contended there was national security evidence that it could not disclose. The attorney for Menepta, Susan Otto, found herself unable to counter this argument:

It’s hard to argue about a national security argument. Anytime I ask what the basis was it would be a canned national security argument. I would ask what’s the justification? The government responds: “National security.” I would say “what does that mean?” The government would say: “I can’t tell you.”²²³