Two and a half months after 9/11/2001, federal prosecutors obtained two criminal indictments in Minnesota and filed them under seal. They remain secret to this day, says the Minneapolis Star Tribune. So do 10 cases from 2002, eight from 2003 and 10 from 2004. The defendants could be juveniles, fugitives, informants, or terrorists. Government prosecutors won’t say. Such secrecy troubles government watchdogs. “It used to be that sealings were extraordinarily, extraordinarily exceptional,” said Martin Garbus, one of the nation’s top First Amendment litigators. But that’s changing, he said.
A reporter entered 3,000 case numbers in the U.S. District Court’s case-tracking system and identified 83 criminal cases filed from January 1998 through 2007 that remain under seal. Jane Kirtley, Silha professor of media ethics and law at the University of Minnesota, called the Star Tribune findings painful. “Any kind of secret proceeding is subject to problems — corruption, special interest, favored treatment, discriminatory treatment — and the only way you know that those things aren’t happening is if they take place in public,” she said. Three federal appeals courts — the Second, Ninth and 11th Circuits — have found that secret court dockets may violate the constitutional protections of the press, the right to a public trial, or both. “I think particularly in the terrorism area, the reaction post-9/11 has been to say national security requires secrecy,” Kirtley said. “But as we know, secrecy doesn’t necessarily mean that we are more secure. In fact, it often means the opposite.”