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Following attacks, courtrooms become secret, documents sealed

The U.S. terror investigation that has hauled in hundreds of Middle Easterners is being conducted with closed court hearings and sealed documents on a scale legal experts say may be unprecedented.
Following attacks, courtrooms become secret, documents sealed

BEN FOX, Associated Press Writer
Breaking News Sections
Thursday, October 4, 2001
(10-04) 16:33 PDT SAN DIEGO (AP) --

The U.S. terror investigation that has hauled in hundreds of Middle Easterners 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 may also 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 experts said 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."
EDITOR'S NOTE -- Associated Press writer David Kravets in San Francisco contributed to this story.

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2001 Associated Press