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Colombian paramilitaries extradited to the U.S., where cases are sealed
Decisions left to judges
An agreement involving secrecy would require authorization at the highest levels of the Justice Department. Prosecutors must obtain approval from the deputy attorney general before requesting, or agreeing to, the sealing of a criminal case.
But ultimately, sealing decisions are made by individual judges. Court policies urge judges to shield as little as possible - a document, a witness's name - and for as short a time as possible. Total secrecy is supposed to be ordered only under "extraordinary circumstances," according to legal precedent. Even in those cases, judges are supposed to unseal records eventually.
In 2006, the Associated Press reported a sharp rise in secrecy in criminal cases, prompting concern that Bush-era prosecutors and judges too often operated outside public scrutiny.
The Administrative Office of the U.S. Courts supplied data for the study, but spokesman David Sellers now says the figures provided were flawed. He said wide variations in record-keeping among individual courts make accurate tallies impossible.
A year after the AP report, the federal judiciary strongly urged courts to mark sealed cases as "under seal" rather than completely omitting them from the record, as happened in the Colombian cases. Yet, the 2009 internal study showed that a dozen courts weren't complying.
That study, done by the research arm of the federal judiciary, looked at all cases that were fully sealed in 2006, giving perhaps the most complete picture of how - and how often - total secrecy is used.
Two percent of about 1 million cases filed that year were sealed. In many, the secrecy was justified, but researchers found dozens of instances of sealing for no legitimate reason. Approximately one of every 275 criminal cases in 2006 was fully sealed to protect cooperators or ongoing investigations.
Last month, the committee overseeing the study recommended that the judiciary's leadership remind judges not to order complete secrecy unless "there are no other options." The panel stopped short of suggesting that this be made mandatory.
"The number of sealed cases was so small," said Judge Harris L. Hartz of the U.S. Court of Appeals for the 10th Circuit, the committee's chairman. "Judges' decisions to seal a case are heavily dependent on the specific facts and circumstances of that case."
The panel recommended that electronic records systems in the courts be programmed to track sealing.
In Colombia, the secret U.S. prosecutions have darkened hopes of achieving redress for thousands of atrocities tied to a network of paramilitary groups known as the Self-Defense Forces of Colombia (AUC). The extradition of key leaders to the United States disrupted a historic amnesty program intended to demobilize units and deliver basic information, such as the location of bodies, to victims' relatives.
Roxanna Altholz, acting director of the International Human Rights Law Clinic at the University of California at Berkeley, who represents Colombian victims of paramilitary violence, said the United States has broken a promise made on the day of the extraditions by Ambassador William R. Brownfield.
"The victims, their representatives and the prosecutors of Colombia will continue to have access in the U.S. to the legal system, to the extradited individuals, and to their assets," Brownfield said on May 13, 2008, in Colombia.
"So far," Altholz said, "none of those promises have been kept."
Human rights lawyers have been unable to track the status of at least 25 other Colombian paramilitary members being prosecuted in various U.S. courts because substantial portions of their cases have been sealed.
Lamberth acknowledged that victims may feel deprived of justice when cases are sealed.
"I honestly don't know how we balance letting victims have a say," he said. "If there is a way to do it without endangering" the lives of those cooperating, "we are open to that."
Given their brutal resumes, the whereabouts of the defendants are cause for concern, prosecutors said.
"If one of them could be living in Bethesda, for example, down the street from the Jones family with a dog and 2.5 kids, then the public has a strong interest in knowing that information," said David Weinstein, who prosecuted drug cases as an assistant U.S. attorney in Florida from 1998 to 2009.
One paramilitary leader, Hughes Manuel Rodriguez Fuentes, was released on bond in 2008. Reporters visited an address in College Park where one of Rodriguez Fuentes' cousins lives, according to court records.
"I don't know where he is," said the relative. "And good luck finding him."
Reporting by Jennifer Janisch of Thirteen/WNET. This article was reported as part of an upcoming Thirteen/WNET documentary series called "Women, War & Peace," in conjunction with ProPublica, the investigative newsroom.