Secret 9/11 case before high court

MIAMI - It's the case that doesn't exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.

Yet this seemingly phantom case does exist - and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?

Secrecy has been a key Bush administration weapon in the war on terrorism. Attorney General John Ashcroft warns that mere tidbits of information that seem innocuous about the massive Sept. 11 investigation could help Al Qaeda carry out new attacks.

Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America's long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.

While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it's unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).

This is among the first of the post-Sept. 11 terrorism cases to wend its way to the nation's highest tribunal. There was no public record of its existence, however, until the appeal was filed with the clerk of the US Supreme Court.

A federal judge and a three-judge federal appeals-court panel have conducted hearings and issued rulings. Yet lawyers and court personnel have been ordered to remain silent.

"The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public," says a partially censored 27-page petition asking the high court to hear the case. "In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists."

Despite the heavy secrecy, a brief docketing error led to a newspaper report identifying MKB by name in March. The report said MKB is an Algerian waiter in south Florida who was detained by immigration authorities and questioned by the FBI.

MKB's legal status remains unclear, but it appears unlikely from court documents that he is connected in any way to terrorism. He has been free since March 2002 on a $10,000 bond.

The case is significant because it could force a close examination of secret tactics that are apparently becoming increasingly common under Attorney General Ashcroft. In September 2001, he ordered that all deportation hearings with links to the Sept. 11 investigation be conducted secretly. In addition, the Justice Department has acknowledged that at least nine criminal cases related to the Sept. 11 investigation were being cloaked in total secrecy.

MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus - that is, an individual's right to force the government to justify his or her detention.

The case offers the Supreme Court an opportunity for the first time to spell out whether such secret judicial proceedings violate constitutional protections. It may also offer the first insight into how much deference a majority of justices is willing to grant the government in areas where the war on terrorism may tread upon fundamental American freedoms.

From the perspective of news reporters and government watchdogs, the case marks a potential turning point away from a long-held presumption that judicial proceedings in the US are open to public scrutiny.

The case is one of several currently on petition to the high court dealing with some aspect of the war on terror. Two cases relate to detainees at Guantánamo Bay, Cuba, and one challenges Yasser Hamdi's open-ended detention as an enemy combatant. A fourth case seeks to force the Justice Department to disclose the names of detainees caught up in antiterror investigations - an issue closely related to the Miami habeas case.

Federal judges have the authority to order sensitive documents or even entire hearings sealed from public view when disclosure might harm national security. Such rulings are usually issued after the judge has explained the need for secrecy in a decision available to the public.

In addition, judges can order that an individual be identified in public court filings only by a pseudonym or by initials, as happened when the MKB case arrived at the US Supreme Court.

What is highly unusual in MKB v. Warden is that lower court judges ordered the entire case sealed from the start - preventing any mention of it to the public.

In her petition to the court, Miami federal public defender Kathleen Williams says the judges' actions authorizing the secrecy without any public notice, public hearings, or public findings amount to "an abuse of discretion" that requires corrective action by the justices.

"This habeas corpus case has been heard, appealed, and decided in complete secrecy," Ms. Williams says in her petition.

A government response to the petition is due Nov. 5. It will mark the first time the Justice Department has publicly acknowledged the existence of the habeas corpus action. The justices are set to consider the case during their Nov. 7 conference.

Justice Department officials have defended the blanket secrecy policy, saying that public hearings and public dockets would undermine efforts to recruit detainees as undercover operatives to infiltrate Al Qaeda cells in the US. According to press reports, similar secret trial tactics have been used by federal prosecutors to shield cooperating drug dealers from mention in public court documents that might blow their cover and end their use as operatives in ongoing undercover narcotics sting operations.

MKB in the case stands for Mohamed Kamel Bellahouel. That was disclosed due to an error on The Applet Court. The case on the SCOTUS docket is at thehttp://www.supremecourtus.gov/docket/03-6747.htm The
Warden in the case name is probably a prison warden whose name isn’t being shown. Other cases which similarly have warden in the name usually refer to the prison or jail warden.

There is a better article at:

http://www.law.com/jsp/article.jsp?id=1063212087029

Secrecy Appealed

Dan Christensen
Miami Daily Business Review
09-25-2003

A South Florida waiter who was detained in the aftermath of the Sept. 11 terrorist attacks has asked the U.S. Supreme Court to decide whether U.S. District Judge Paul C. Huck in Miami and the 11th U.S. Circuit Court of Appeals abused their discretion by sealing his case without explanation.

But in an unusual move, the public copy of Mohamed Kamel Bellahouel's petition to the Supreme Court for a writ of certiorari is heavily censored, with entire pages blanked out. A complete copy, plus attachments, was filed under seal for the justices' eyes alone. Still, the filing by the federal public defender's office in Miami is the first public acknowledgement by any federal court of Bellahouel's habeas corpus case.

According to court papers filed by Paul M. Rashkind, chief of appeals for Federal Public Defender Kathleen M. Williams, the Algerian-born Bellahouel was "obliged" to file both full and redacted versions of his Supreme Court petition to comply with lower court secrecy rulings in his case.

The lower courts, the petition said, have gone to great lengths to hide the "essential fact" that Bellahouel's case even exists -- including keeping the existence of the case off the public court dockets. But, it said, "the facts of the petitioner's case would make a significant contribution to the national debate about the detention and treatment of Middle Eastern persons. There is no legitimate government interest [in] permitting court-suppression of his ordeal."

Even at the Supreme Court, however, the public file for Case No. 03M1 does not include the petitioner's name or the names of the lower courts that kept the case secret. The style lists Bellahouel's initials -- M.K.B. v. Warden et al. The case is identifiable to knowledgeable outsiders only because the petition includes a reference to a March 12 Daily Business Review article about Bellahouel's case.

That article reported how the case only came to light due to the inadvertent disclosure by the 11th Circuit's court clerk's office in Atlanta of Bellahouel's appeal of Judge Huck's decision to seal the case. That disclosure led to the alteration of published federal court calendars and computer records to hide the case again.

The article also reported how the three judges on the 11th Circuit panel -- Stanley F. Birch Jr., Ed Carnes and Procter Hug Jr., from Reno, Nev. -- closed their courtroom to the public and the news media on March 5 to hear arguments in the case.

The federal government has not accused Bellahouel, 34, of involvement in terrorism. After holding him in custody for five months, the U.S. Department of Justice apparently concluded he was not a danger and authorized his release in March 2002 from Krome Detention Center in southern Miami-Dade County on a $10,000 immigration bond. Bellahouel now is seeking to adjust his legal status and block the government's effort to deport him for overstaying his student visa.

Bellahouel's appeal to the Supreme Court has partly lifted the extraordinary veil of secrecy thrown over the case since he filed his habeas corpus petition in January 2002. At the same time, the high court appeal raises fundamental issues about public access to court records, particularly to basic court docket information, at a time of heightened national security and suspicion.

"At a bare minimum you need to have a public docket that reflects cases," said Thomas R. Julin, a partner at Hunton & Williams in Miami who is not involved in the case. "Without that, there's absolutely no safeguard against abuse." Both Julin and Fort Lauderdale appellate attorney Bruce S. Rogow said that aside from grand jury matters, they hadn't seen secret docketing of cases before.

Bellahouel's petition also highlights the fact that little information is publicly available about the 1,200 young Arab and Muslim men the Department of Justice has said were rounded up in the aftermath of the Sept. 11 terrorist attacks, or about those who've been secretly held as material witnesses in the FBI investigation code-named PENTTBOM.

"This petition raises the common law and First Amendment rights of the public and the news media, who are oblivious to the proceedings below and cannot be heard themselves," Rashkind wrote. "Their ignorance of these proceedings is due to an improperly sealed dual-docket in the district court, which did not even acknowledge the existence of the case; and a refusal of the court of appeals to publicly acknowledge the appeal pending before it, that it decided the case, or the nature of its decision."

U.S. Solicitor General Theodore B. Olson, listed on the docket as now representing the government, had not filed papers in the case as of Wednesday.

Before the Supreme Court can consider Bellahouel's arguments, a majority of the justices must vote to accept his petition, which was filed July 10. A decision could come as early as Monday, when the justices are scheduled to hold a conference to consider whether to hear cases filed during the summer recess.

Rashkind declined to discuss the case in detail, and the U.S. Attorney's Office in Miami also declined comment. Rashkind's petition said a gag order on all parties is in force.

Rogow said it was "rare" for documents filed in a Supreme Court case to be so heavily censored.

Bellahouel, who lives north of Fort Lauderdale, Fla., in Deerfield Beach with his American wife, was a veterinarian in Algeria. He came to the United States in November 1996 to study biology at Florida Atlantic University in Boca Raton. He ran out of money and didn't re-enroll at FAU after the fall term of 1997.

In the summer of 2001 he was waiting tables at the Kef Room, a Middle Eastern restaurant near Boca Raton in Delray Beach where several al-Qaida hijackers dined in the weeks before the 2001 terrorist attacks. In an affidavit presented to the federal immigration court, an FBI terrorism investigation official said it was "likely" that Bellahouel served Sept. 11 hijack leaders Mohamed Atta and Marwan al Shehhi.

According to the affidavit, an employee at a nearby movie theater fingered Bellahouel as the man she saw go into the theater with hijacker Ahmed Alnami. Bellahouel has denied any connection to the hijackers.

Bellahouel was picked up on Oct. 15, 2001. Government charging documents stated that Bellahouel failed to comply with the conditions of the student visa he received when he entered the United States in November 1996.

A month later, an immigration court judge, relying on the FBI affidavit, denied Bellahouel bond. Before the FBI ultimately agreed to Bellahouel's release the following March, Bellahouel was transported to Alexandria, Va., to testify before a federal grand jury. The substance of Bellahouel's testimony, if any, is not known.

For five months beginning in October 2001, Bellahouel was held in federal detention without bond. While still in custody, Bellahouel asked the courts to release him and open his case to the public.

The release issue became moot in March of last year when Bellahouel bonded out pending the completion of his immigration case. U.S. immigration authorities still seek to deport him.

Bellahouel's efforts to open the case to the public have continued separate from his immigration case. He filed his habeas suit in January 2002 while he was held at the Federal Correctional Institution in southern Miami-Dade. The suit named the former warden there, Monica S. Wetzel, as a defendant. The identity of a second defendant is not known.

The case was assigned to Judge Huck in Miami, though that information did not become public until recently. Little public information is available about what happened before Huck had the case. The case suddenly appeared on the U.S. District Court docket in Miami in mid-June of this year. Other than the case number, 02cv20034, virtually every other detail of the case, including the names of the parties and their lawyers, is still sealed. Bellahouel appealed Huck's decision to seal the entire case in February 2002.

Bellahouel's petition to the U.S. Supreme Court revealed that the 11th Circuit panel issued a "sealed and unpublished judgment" in his case on March 31 of this year.

"Although the secret court of appeals' decision ordered the district court to docket the case publicly [words deleted], it affirmed the district court's refusal to unseal any of the filings in the case, and every entry in the case remains sealed," the petition says. "The court of appeals itself refuses to disclose that it has decided the appeal. Indeed, the final order of the court of appeals is sealed, not publicly docketed."

Bellahouel's petition to the Supreme Court attacks the sealing orders of both the district court and the appeals court, calling them "improper" and noting that "habeas corpus proceedings are historically, and by court rule, open to the public."

The petition says that the district court and the 11th Circuit judges decided on their own to seal the case, because neither the government nor Bellahouel requested it. "That decision was apparently made ... without input from the parties and without the articulated judicial findings required by the court's jurisprudence," Rashkind wrote.

The information blackout in Bellahouel's case kept it off the public docket and unavailable to the news media. Rashkind said the secrecy "effectively neuter[ed]" the news media's ability to file a First Amendment challenge to the secrecy decisions.

NO ORDER ISSUED

Rashkind argued that courts aren't supposed to close access to such cases unless a "compelling government interest" is at stake. And judges who deny access must explain themselves in an order.

But Judge Huck never issued such an order, the petition said. "This is equally true of the court of appeals' secrecy, which exists without any articulation of compelling circumstances to justify it."

Rashkind argues that the failure to issue an order justifying the sealing was legally unsupportable. "The district court's failure to give notice, hold a hearing, and to make articulated findings is an abuse of discretion and reversible error. The same is true of the court of appeals' secrecy," the petition says.

Public information about court proceedings is "the first and essential ingredient" to creating public debate and affording the opportunity to challenge government secrecy, Rashkind wrote. In contrast, the "blanket sealing" in Bellahouel's case "hides everything, both the government's actions and petitioner's claims of unconstitutional government collusion."

"The world has changed since 9-11," Rashkind argues. "But the common law and First Amendment rights to discuss and debate those changing events remain alive. The court should grant certiorari, not only to preserve the public's ... rights to know, but also to reinforce those rights in a time of increased national suspicion about the free flow of information and debate."

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