Secret Courts – Secret Law by 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 of them 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 have said that trials in the Star Chamber were public, but that witnesses against the accused were examined privately with no opportunity for him to discredit them. Apparently all authorities agree that the accused himself was grilled 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. Two of the cases, 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 government agencies, which the Courts are, are to 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 concerning those “evil Arab terrorists” and the Immigration and Naturalization Service. “In 1996, the president signed the Anti-Terrorism and Effective Death Penalty Act, which authorized secret evidence. A federal district judge in Newark, N.J., William Walls, has now described this as ‘government processes initiated and prosecuted in darkness.’” Hentoff: “Prosecution in Darkness,” Washington Post, Saturday, November 6, 1999; Page A25.

For the rest of us, Congress created two little known bureaucracies, which are responsible for the kind of justice that all thinking free people have come to dread. One of the organizations 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 Judicial Conference’s supervision. “Chambers Handbook of Judges’ Law Clerks and Secretaries” (hereinafter “The Handbook”), p. 84 (FJC 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 has 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 the AO’s control of the distribution of funds appropriated by Congress. Id., p. 84-85.

People with a modicum of intelligence have already figured out 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 judicial 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, page 3 (1999). A very close(d)-knit group indeed!

Now, the issues at hand: Secret Courts – Secret Law.

One of the more interesting publications the educational arm of the Federal courts has produced 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.

However, this is another little gem found in this book. What this piece of work contains is absolute proof that there are two types of justice. Despite what you may think, there is one type for the rich and another for the poor. However, the brand of justice this publication discusses is private versus public. Our own modern day Star Chamber, only it is just more sophisticated and 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.

As the old saying goes “the proof is in 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 was 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.” “The Guide,” p. 3. Pray tell, where is that record that contains the full measure of the judicial process? It is a 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.” (emphasis added.) “The Guide,” p. 3. In other words, those secret deals between judges and lawyers about which we have read and heard take place in the judge’s chambers. This is not some radical conspiratorial group two scoops short of a full load espousing this thinking on some obscure web site. This publication is written with approval by the very 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 . . .” “The Guide,” p. 3. Material so important that it is only handled by confidential employees of the Court, a.k.a. judicial law clerks (college kids) and secretaries. American Bar Association, “Standards Relating to Court Organization,” p. 99 (1990).

If you desire to open the vault containing the information that really decided your case – forget it! As it stands now, the chief justice — although the administrative officer of each court – will simply ignore any and all F.O.I.A. (Freedom of Information Act) requests. A letter your humble author addressed to Chief Judge Lanier Anderson of the Eleventh Circuit Court of Appeals did not even elicit a response. The communication requested information such as “the name of all individuals who prepared any and all Bench Memos, draft memoranda, draft opinions, orders, correspondence, and who had conducted other research relative to” cases filed with the Eleven Circuit. My letter was ignored.

After waiting several weeks, I phoned the Court of Appeals and was informed that any such F.O.I.A. requests should be addressed to the Clerk of the Court, Mr. Thomas Kahn. The clerk’s answer to the same F.O.I.A. request made to the Chief Judge stated that F.O.I.A. “does not apply to federal courts” citing 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 latest foray into legal slime? Public trials are a fantasy. There is no meaningful access to the courts. 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 — and invaded this country and today continue to eat away at the very roots of an increasingly dysfunctional judicial system.

Larry Bolin

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