The public docket for the court in which the case originated is devoid of any mention of the case; the published court calendar for the appellate court was obliterated to omit the names of litigants; the appellate court's computer records were altered to remove from public view any information about the case; the appellate court closes its courtroom to the public and the press to hear arguments in the case; and the litigants are not allowed to talk about it.
That is the way the government and the federal courts have dealt with Mohamed Kamel Bellahouel. The Supreme Court is now considering whether the lower courts were justified in sealing the entire record and docket without making findings supporting the sealing.
Yesterday a coalition of 23 media organizations and public interest groups organized by The Reporters Committee for Freedom of the Press filed a motion to intervene in the “Secret Case” pending before the U.S. Supreme Court. The Reporters Committee press release is available here.
The “Secret Case,” M. K. B. v. Warden, et al., came to our attention when it was disclosed that the Supreme Court was considering a case with no public record. I was able to post more facts about the “Secret Case” here.
Last November, the Reporters Committee filed a filed a friend-of-the-court brief asking the Supreme Court to open the sealed records of the habeas corpus case of Mohamed K. Bellahouel, the “Secret Case.” The Reporters Committee's brief is available here.
The Reporters Committee, and its coalition now seek to become a party in the case. The coalition includes news organizations such as The New York Times, The Washington Post, Gannett, Knight Ridder, Hearst, ABC News, and CNN. Acording to the Reporters press release, the group seek to become parties in the case in order to represent the interests of the public and news media in ensuring that proceedings are conducted openly, in compliance with the First Amendment.
According to the coalition’s motion, if the Supreme Court allows them to join the case, the group will seek three things:
Access to redacted materials (not including Classified material);These are all good things most of us would like to see.
Written findings justifying the need for secrecy in future proceedings in this case.
An order requiring similar findings for the filings and record in the proceedings in the lower courts that heard this case.
The most disturbing aspect of this case is that not only have all of the lower courts’ proceedings been held in secret, but that the lower courts concealed even the very existence of the case.
Only due to a court clerk’s error did the media learn of the existence of the case. In “Secrecy Within,” published in the Miami Daily Business Review on March 12, 2003, Dan Christensen wrote:
A published court calendar for the 11th U.S. Circuit Court of Appeals was obliterated to omit the names of litigants in a sealed civil case brought by an Algerian man the Miami Daily Business Review has learned was among 1,200 young Arab and Muslim men secretly detained in the post-Sept. 11 nationwide dragnet.As temporary as it was, that is all that constituted the public record of this case this before it got to the Supreme Court.
Later, the appellate court's computer records were altered to remove from public view any information about the case, No. 02-11060.
In between, a three-judge panel of the 11th Circuit closed its courtroom March 5 to the public and the press to hear arguments in the sealed case.
Court records that were briefly public said the case is styled Mohamed Kamel Bellahouel v. Monica S. Wetzel.
While it is not unusual for court records to be sealed, it is unheard of that even the existence of a case is kept secret. It is even a greater concern that none of the usual procedures for sealing court records were used. Instead, the lower courts tried to act entirely in secret. Why? What are the government and the courts trying to hide?
I hope the there will be some explanation when the government files a response to Bellahouel’s appeal. The Supreme Court has asked the government to respond to the appeal. That response was due Friday, but according to the Associated Press, because the court was closed for the holiday, the government brief may be filed Monday.
There is no guarantee that government’s response will provide any additional information. The government may seek to have its entire response classified. The government could, like Bellahouel, file one set of documents for the court, under seal, and another set of redacted documents for members of the press and public.
As Warren Richey writing in the Christian Science Monitor, predicts:
However the Justice Department responds, the case poses a Catch-22 for government lawyers, given their insistence that disclosure of even relatively minor bits of information - indeed just confirmation that a case exists at all - could harm US national security.
Analysts say it is not clear whether the request for a brief from the solicitor general is an indication of concern within the more liberal wing of the court about excessive government secrecy or an attempt by more conservative justices to obtain solid grounds to deny review.
What Is Known About This Case
The folling information is from my earlier posts on this case and is based primarily on the reporting of Dan Christensen in the Miami Daily Business Review.
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 state 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 was released on bond pending the completion of his immigration case. U.S. immigration authorities still seek to deport him.
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.
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."
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.
I have no sympathy for Bellahouel, if he is in fact in the U.S illegally. I am extremely concerned, however, about the degree and manner in which the government and the courts have kept the very existence of the case from us.