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"Sunlight is the best disinfectant."
-- Justice Louis Brandeis 
Secrecy is In, Disclosure is Out


Larry Bolin

The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups, each had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial.  In re: Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948).

Some authorities maintain that trials in the Star Chamber were public, but that witnesses against the accused were examined privately with no opportunity for the accused to discredit them. Apparently, all authorities agree that the accused himself was interrogated in secret, often tortured, in an effort to obtain a confession, and that the most objectionable of the Star Chamber's practices was its asserted prerogative to disregard the common law rules of criminal procedure when the occasion demanded.  5 Holdsworth, A History of English Law, 163, 165, 180-197 (2d ed., 1937); Radin, The Right to a Public Trial, 6 Temp. L. Q., 381, 386-388; Washburn, The Court of Star Chamber, 12 Am. L. Rev., 21, 25-31; In re: Oliver, supra.

"Secret law is an abomination," wrote Professor Kenneth Davis in Administrative Law Treatise 137 in 1970. This quote has been cited in numerous federal cases involving Freedom of Information Act (F.O.I.A.) requests. The cases of Cox v. United States Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978) and Stokes v. Brennan, 476 F.2d 699, 701-02 (5th Cir. 1973) are just two examples where the courts argued that secret law is wrong and that government agencies, which includes the courts, should make their documents available for public inspection. It is crucial to public confidence in the courts that judges be seen as enforcing the law and obeying it themselves. U.S. v. Muniz, 49 F.3d 36, 43 (1st Cir. 1995).

Sounds good, so far.

Except when it comes to cases involving the Immigration and Naturalization Service and those "evil Arab terrorists." In 1996, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act, which authorized secret evidence. A federal district judge in Newark, N.J., Hon. William Walls, has described this as "government processes initiated and prosecuted in darkness." Hentoff, Prosecution in Darkness, Washington Post, November 6, 1999, p. A-25.

For the rest of us, Congress created two little-known bureaucracies that are responsible for the kind of justice that all thinking free people have come to dread. The first pillar of injustice, created in 1922, albeit under a different name, was the Judicial Conference. In 1939, Congress transferred responsibility for federal court budget preparation, data gathering, and administrative support from the Justice Department to the newly created Administrative Office of the U.S. Courts, which was directed to function under the supervision of the Judicial Conference. Chambers Handbook: For Judges' Law Clerks and Secretaries, p. 84, Federal Judicial Center, 1994.

The Chief Justice of the Supreme Court presides over the Judicial Conference, which is composed of the chief judges of the courts of appeals, one district judge from each regional circuit, and the chief judge of the Court of International Trade. Although Congress vested relatively little authority directly in the Judicial Conference, this organization has considerable practical authority. That authority arises from its statutory responsibility to supervise and direct the Administrative Office of the U.S. Courts, including that agency's control of the distribution of funds appropriated by Congress. Id., pp. 84-85.

By now, anyone with a modicum of intelligence will have surmised that the Judicial Conference controls the federal courts.

In 1967, Congress created the second pillar of injustice and labeled it the Federal Judicial Center (hereinafter, the "FJC") at the request of the Judicial Conference. The FJC's mission is "to further the development and adoption of improved judicial administration" in the courts of the United States. The Center's statutory duties are codified at 28 U.S.C. §§620-629. They include providing orientation and continuing education for the judges and staff (which includes law clerks and secretaries) of the federal judicial system, performing research on court operations and procedures (particularly in support of Judicial Conference committees), and conducting programs to promote judicial federalism, assist foreign judicial systems, and study the federal courts' history. Federal Judicial Center Annual Report, p. 3, 1999.

Governance of the Center consists of the Chief Justice of the United States, who chairs the Center's Board, which also includes two circuit judges, three district judges, one bankruptcy judge, and one magistrate judge elected by the Judicial Conference, as well as the director, who oversees the FJC's activities, and its members, who serve on standing committees on education and research and on Center advisory committees on judicial education programs. Federal Judicial Center Annual Report, p. 3, 1999. A very close-knit group indeed!

Now, the issue at hand: Secret Courts - Secret Law.

One of the more interesting publications produced by the educational arm of the federal courts in recent years is A Guide to the Preservation of Federal Judges' Papers, 1996 (hereinafter, the "Guide"). Just as the title suggests, this concerns the preservation of judges' papers.

There is a little gem found in this book that proves there are two types of justice. Despite what you may think, there is one type for the rich and another for the poor. These types of justice are discussed in the publication as private versus public. Our very own modern-day Star Chamber, only more sophisticated; and it is found in every federal courthouse throughout this country. Everyone who becomes involved in a federal case -- civil or criminal, rich or poor, black, white, yellow or brown -- will be treated in a way this man with hair now white would have considered impossible just five years ago.

There is an old saying about the proof of the pudding. In the federal courts today, we have two (2) sets of books: one set -- the "official record" for public consumption -- will be handed to you by the clerk from behind the counter at the Federal Courthouse (for a fee, of course). As described by the Federal Judicial History Office, "The official court record, with its focus on formal procedures, does not reflect the full complexity of the judicial process and the work of individual jurists." Guide, p. 3. Where then is that record that contains the full measure of the judicial process? That is a private record that lowly litigants will NEVER see. That record is found in the Star Chambers of the twenty-first century: the Judges' Chambers!  The Guide describes this record as "chambers papers."

"Chambers papers reveal the challenge and difficulty of the judicial trade more clearly than official case files by helping to explain the internal work of the federal courts and the process of judicial deliberation. Chambers papers also describe exchanges between the bench and the bar and the relationship between the court and the community in ways that published opinions and official case files cannot." Guide, p. 3. In other words, those secret deals between judges and lawyers about which we have read and heard take place in judges' chambers. This is not the creation of some radical group, two scoops short of a full load, espousing conspiratorial theories on some obscure Web site. This was written by and with the approval of bar members themselves and published under the auspices of the United States Government.

These chambers papers must be very important if they are not public information. Just what sort of data do these records hold that cannot be revealed? "Chambers papers frequently include predecisional material, such as draft memoranda, draft opinions, orders, correspondence, and research. Often included among chambers papers are documents relating to the administration of courts or justice . . ." Guide, p. 3. Material so important that it is only handled by confidential employees of the Court, including law clerks, student interns, and secretaries. Standards Relating to Court Organization, p. 99, American Bar Association, 1990.

If you desire to open the vault containing the information that really decided your case, forget it! As things stand now, the chief judge - though the administrative officer of each court - will simply ignore any and all F.O.I.A. requests. A letter this humble author addressed to Chief Judge Lanier Anderson of the Eleventh Circuit Court of Appeals did not even elicit a response. My letter requested information such as "the names of all individuals who prepared any and all bench memos, draft memoranda, draft opinions, orders, and correspondence, and who conducted other research relative to" certain cases filed with the Eleven Circuit. The request was ignored.

After waiting several weeks, I telephoned the Court of Appeals and was informed that such F.O.I.A. requests should be addressed to the Clerk of Court, Mr. Thomas Kahn. However, the clerk's answer to the same request made to the chief judge stated that the F.O.I.A. "does not apply to federal courts," and cited 5 U.S.C. §551(1)(B); 5 U.S.C. §552(f)(1) as the basis for his decision.

What conclusions may we draw from this foray into legal slime?  Public trials are a fantasy; there is no meaningful access to the courts; and due process is a distant memory.  The Star Chamber proceedings, which caused our forefathers to leave England in the 17th century and land in Massachusetts, apparently stowed away like rodents that invaded this country and today continue to eat away at the roots of an increasingly dysfunctional judicial system.

Copyright © 2001 FTG Publishing

Ed. Note: Secrecy is an important tool in the exercise of state power, and the term "secret law" may also be applied to the following situations:


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