Not So Secret

Imagine a legal system in which the public docket for the court in which a 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.

Where can you find such a legal system? Right here. All those things happened in the secret case which is now before the U.S. Supreme Court, and which I posted about here.

More is known about this secret case. This article, published last March, reports these disturbing facts:

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.

Asked about the alteration of published court records to remove Bellahouel's name, the appellate court's chief deputy clerk in Atlanta said office personnel acted after realizing an error had been made. The case is sealed, he said, and access is restricted.

"We made a mistake. It shouldn't have been put out in the first place," said Robert Phelps March 5 after the hearing. After being told Bellahouel's name was still accessible in the court's computer system, Phelps replied, "It is? We'll have to fix that, too." Within hours, Bellahouel's name had been removed.

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. Wetzel is a former warden at the Federal Correctional Institution in South Miami-Dade County.

The public docket for the Southern District of Florida, where the case apparently originated, is devoid of any mention of either Bellahouel or his case.

Bellahouel declined to be interviewed, saying, "I cannot talk about it. I am not allowed."

A colleague pointed me to this more recent article which provides much more information about Bellahouel.

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, 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.

In yet another unusual move, the public copy of Bellahouel's petition to the Supreme Court for a writ of certiorari is heavily censored.

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.

This case raises many interesting issues concerning the rights of the public and the news media in the conflict between America's tradition of open courts and the need for security in times of national peril.

I think the Christian Science Monitor missed a lot of “public” information when it charged that this case there has no public record. There may not be an official public record, but the press has been able to share a lot of information about it.