In a brief filed today, attorney Zachary Margulis-Ohnuma criticized what appears to have become a routine practice in the Eastern District of New York of handling certain prosecutions entirely in secret. The brief is an appeal from a district court order allowing the government to prosecute an alleged terrorist entirely behind closed doors. The person charged is not identified by name, all papers are filed under seal, and the courtroom has been closed for all proceedings.
As the Supreme Court and the Second Circuit have repeated over and over again, secret court proceedings are almost never allowed in American courts. Sealing an entire case is without precedent. But it turns out that this case is just one of at least eight pending “John Doe” prosecutions uncovered by journalist Johnny Dwyer, on whose behalf the appeal was filed. If the appeal succeeds, at least some parts of this mysterious case will be made public.
The brief also highlights the insidious effect of secret criminal prosecutions. The district judge allowed the case to proceed in secret because, it said, “unsealing this matter could jeopardize the safety of numerous individuals.” But it’s not the “unsealing” that puts people in danger; it’s the government’s investigation and the techniques it employs. If unsealing the case would be so dangerous, the government should not have brought it in the first case. It only did because it knew — based on the other cases uncovered by Mr. Dwyer — that it could force the defendant and the court to agree to seal. If the normal rules applied, i.e. if prosecutions had to be public, the government would still be able to pursue its investigation and stop the crimes, but it would have to do so with techniques that don’t “jeopardize the safety of numerous individuals.” All this is pretty abstract. That’s because until the Second Circuit enforces the First and Sixth Amendments and unseals the case, we won’t really know what it’s all about or how the district court justified its departure from our tradition of public prosecutions.
Copies of the brief and appendix are available below.