CALIFORNIA YANKEE

Supreme Court To Hear Dirty Bomber Case

Via The Command Post we learn that the U.S. Supreme Court will hear the dirty bomber case.

On December 18, a divided U.S. Second Circuit Court of Appeals, ordered that Jose Padilla, the alleged “Dirty Bomber” who calls himself Abdullah al-Muhajir, be released from custody within thirty days. The appellate court concluded that “the President is without authority from Congress or the Constitution to order the detention and interrogation of Mr. Padilla.”

The majority and dissenting decisions of the Second Circuit can be accessed here and here.

I posted about the Second Circuit's decision here. You can read my posts about the Second Circuit’s November 17th hearing on Padilla’s case here and here.

The Second Circuit's decision is extremely important and a controversial result.

Abdullah al-Muhajir is a suspect in an al-Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport as he returned from Pakistan. He was transported to Manhattan where he was held as a material witness in a federal grand jury terrorism investigation. The Bush administration later classified him as an enemy combatant and he was transferred to a Navy prison in South Carolina.

Right now the best article I can find about the Supreme Court agreeing to here the case is this Bloomberg article:

The government has information that "Padilla is closely associated with al-Qaeda and came to the United States to advance the conduct of terrorist operations" on behalf of Osama bin Laden's organization, Solicitor General Theodore Olson said in court papers filed in Washington.

The lower court ruling "significantly undermines the ability of the president to protect the nation from further enemy attacks in wartime," Olson said.

Olson said in court papers that al-Qaeda "has extended the battle far beyond traditional notions of battlefield combat" and seeks to carry out "surreptitious and large-scale attacks against civilian targets."

Padilla's lawyers urged the Supreme Court not to hear the government's appeal. Still, they said that, if the court granted review, the justices should decide whether Padilla has a right to a court hearing to challenge the government's reasons for holding him.

I have followed the “dirty bomber” case as a part of my concern about judicial secrecy. My posts about judicial secrecy can all be found here.

It is not at all surprising that the Supreme Court agreed to here this case. The real issue the Supreme Court needs to address is whether a U.S. citizen, designated as an enemy combatant, can be held without any opportunity to challenge the government's decision.

Secret Arguments for Secret Case

Today, the government asked the Supreme Court to let it keep even its arguments secret in the “Secret Case” I posted about here.

According to Gina Holland, writing for the Associated Press:

Solicitor General Theodore Olson told justices in a one-paragraph filing that "this matter pertains to information that is required to be kept under seal."

Lucy A. Dalglish, executive director of The Reporters Committee for Freedom of the Press, expressed the frustration I feel about the government’s position when she said:

"The idea that there is nothing that could be filed publicly is really ridiculous," she said. "It just emphasizes our point that we're living in frightening times. People can be arrested, thrown in jail and have secret court proceedings, and we know absolutely nothing about it."

I know we are in a war. I realize that the evil doers want to make the U.S. the battleground. I cannot understand, nor even imagine, why it is that the government cannot acknowledge that this case exits and at least explain why some information should be secret. Without such an explanation I have no faith in this unprecedented secrecy in a U.S. federal court case.

What is it that the government, and two lower courts are hiding?

UPDATE: The government's single paragraph public response is available here courtesy of SCOTUSblog.

The Times Discovers the Secret Case

Today, the New York Times finally discovered the "secret case." It's about time!

Linda Greenhouse’s article, which is about the coalition of media organizations that want to become parties in the secret case, doesn’t add any new information to that which I posted here on Saturday. That is okay.

The real import of the Times article is that now most newspapers will publish similar articles. That will accomplish one of the two goals I had posting about the Secret Case, making as many people as possible aware of this issue. I hope the second goal, a serious discussion of the issue, will naturally follow.

Media Group Seeks to Join Secret Case

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.

A little more information became available when a copy of the heavily censored petition asking the Supreme Court to hear the appeal was made available.

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);

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.

These are all good things most of us would like to see.

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.

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.

As temporary as it was, that is all that constituted the public record of this case this before it got to the Supreme Court.

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.

UPDATE: 1/05/03 I added this post and this post concerning today's developments in the "secret case."

Court Orders Release of Alleged Dirty Bomber

The U.S. Second Circuit Court of Appeals ordered that Jose Padilla, the alleged “Dirty Bomber,” be released from custody within thirty days.

A divided court, concluded that “the President is without authority from Congress or the Constitution to order the detention and interrogation of Mr. Padilla.” You can read my posts about the Second Circuit’s November 17th hearing on Padilla’s case here and here.

This is an extremely important case, and a shocking result. I have followed the “dirty Bomber” case as a part of my concern about judicial secrecy. I will post more about this case after I have ben able to read and contemplate the decision.

In the meantime this Reuters article offers the most information about it.

Padilla is a suspect in an al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport 18 months ago as he arrived from Pakistan. He was transported to Manhattan federal court system where he was held as a material witness in a federal grand jury terrorism investigation. The Bush administration later classified him as an enemy combatant and he was transferred to a Navy prison in South Carolina.

Federal prosecutors have argued Padilla should not have access to attorneys because they said he posed a threat to national security and defense lawyers would interfere with his interrogation.

The majority and dissenting decisions can be accessed here and here.

UPDATE: This is going to well covered in the blogosphere.

Rantingprofs posts "Process Matters," and makes this overlooked point:

Amidst all the hysteria over what this case could mean for civil liberties (you've heard the arguments, no doubt, that this means that "anyone" could "just" be declared an enemy combatant and locked up incommunicado at the "whim" of the government) what consistently gets overlooked is that the case has been working its way through the court system.

Ed Thibodeau is following this story at Nonplussed with "A victory for due process."

Jessica's Well has posted Jose Padilla.

Enemy Combatant To Get Lawyer

The Department of Defense announced yesterday that enemy combatant, Yaser Esam Hamdi, will be allowed access to a lawyer. Hamdi, an enemy combatant, has been detained in the same facility with the alleged “dirty bomber,” Jose Padilla.

The Associated Press reports that Hamdi was captured in Afghanistan in November 2001. He was originally taken to the prison for terrorism suspects in Guantanamo Bay. Hamdi was transferred to the United States after it was determined that he had been born in Louisiana and therefore is a U.S. citizen.

In January a federal appeals court in Richmond, Va., ruled that Hamdi was not entitled to access to a lawyer or to challenge the basis of his continued detention.

This is an important change in the governments position concerning enemy combatants. As recently as November 17th, during a hearing in the Padilla case, the government claimed it could detain an enemy combatant as long as the conflict lasts. You can find my post about that hearing here.

As explained in this post, many are deeply troubled with the concept of holding a U.S. citizen indefinitely without even an opportunity to test the assertion that the enemy combatant designation is accurate. The importance of such an opportunity is more than adequately evidenced by what happened to Rchard Jewel, incorrectly accused by the FBI as the Atlanta Olympics bomber.
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The Defense Department’s press release was carefully drafted, attempting to avoid setting a precedent requiring all enemy combatants access to lawyers.

The Defense Department said it decided to allow Hamdi access to counsel because:

Hamdi is a U.S. citizen detained by DoD in the United States, because DoD has completed its intelligence collection with Hamdi, and because DoD has determined that the access will not compromise the national security of the United States.

Detention as an enemy combatant is not criminal in nature but is permitted under the law of war to prevent an enemy combatant from continuing to fight against the United States. Under the law of war, enemy combatants may be detained until the end of hostilities.

Having allowed Hamdi access to lawyers, the government will be hard pressed to prevent the other two enemy combatants who are U.S. citizens from having some access to lawyers.

Padilla's Hearing

In this editorial the Washington Post succinctly articulates why so many are troubled by the governments’s position on holding Jose Padilla, the alleged “dirty bomber.”

The concern is that the government is denying Padilla any process for examining the basis of the allegations against him. As the Post puts it:

Mr. Padilla is being imprisoned indefinitely on the basis of the president's say-so alone. But what if an enemy combatant designation were the product of some tragic mistake? What if it were made maliciously? No court could provide relief, because no court would even know whether Mr. Padilla admitted or contested the allegations against him.

An American citizen must be able to respond to the government's allegations and must have some access to counsel in order to do so.

As I explained here and here Padilla is suspected of involvement in a plot to obtain and detonate a radioactive weapon or "dirty bomb."

Padilla, a former Chicago gang member, allegedly met with high ranking al-Qaida members in 2001 and 2002, received explosives training in al-Qaeda camps inside Afghanistan and plotted with the group to bomb hotels and gas stations, and to detonate a radioactive "dirty bomb," a conventional explosive laced with radioactive material, inside the United States.

Padilla was arrested in May 2002 after returning to Chicago from Pakistan. He was arrested as a material witness for the grand jury probe into the September 11, 2001, terrorist attacks. Padilla was transferred to Department of Defense custody after President bush declared him to be an enemy combatant. Padilla, a U.S. citizen, has been held in a military prison, without access to lawyers since last year.

Padilla may in fact be the evil doer wannabe the government claims. If he is, I hope he is never again allowed to see the light of day. For precisely the reasons stated by the Washington Post there must be a procedure to give Padilla some due process while still protecting legitimate national security concerns.

Dirty Bomber Hearing

After reading a number of news accounts about today's hearing in the "Dirty Bomber" case, it seems clear that the judges gave the government's lawyer a hard time.

Padilla, a former Chicago gang member, allegedly met with high ranking al-Qaida members in 2001 and 2002, received explosives training in al-Qaeda camps inside Afghanistan and plotted with the group to bomb hotels and gas stations, and to detonate a radioactive "dirty bomb," a conventional explosive laced with radioactive material, inside the United States.

Padilla was arrested in May 2002 after returning to Chicago from Pakistan. He was arrested as a material witness for the grand jury probe into the September 11, 2001, terrorist attacks. Padilla was transferred to Department of Defense custody after President bush declared him to be an enemy combatant on June 9, 2002.

Today’s hearing before a three judge panel of the 2nd Circuit Court of Appeals concerned the government's appeal of a court ruling that lawyers must be allowed to meet with Padilla at the South Carolina brig where he is being held as an enemy combatant.

In Newsday’s report, Patricia Hurtado quotes Judge Barrington Parker as saying, "It strikes me . . .the power you're asking us to give to the Executive is power, which as I read the Constitution, is Congressional power. Were we to construe the Constitution as permitting this kind of power in the Executive with only modest kinds of judicial review, we would be affecting a sea-change in the Constitutional life of this country and we'd be making that change that would be unprecedented in civilized society."

The government contends that the President has authority to detain Padilla indefinitely for intelligence-gathering purposes and to deter future attacks in this country. Deputy Solicitor General Paul Clement said "Al-Qaida made the battlefield the United States and the evidence indicates that they're trying to make it the battlefield again.”

Judge Rosemary Pooler asked, "If, in the battlefield is the United States, I think Congress has to say that and I don't think they have yet." She added later, "As terrible as 9/11 was, it didn't repeal the Constitution."

CNN’s Phil Hirchkorn and Deborah Feyerick reported that Judge Richard Wesley asked: "How long can Mr. Padilla remain an enemy combatant? Is Mr. Padilla in limbo until the president decides? ... What's the outer limit?"

"As long as the conflict," answered Clement.

Clement said the congressional resolution authorizing the use of military force to respond to the September 11 attacks extended to U.S. citizens on American soil to prevent further attacks or for intelligence gathering.

"Anyone who is associated with al Qaeda is aiding the enemy," Clement said.

Judge Barrington Parker stated that the war resolution "has to be stretched" to permit such executive power, which would be "breathtaking in its scope."

Judge Wesley noted that the Patriot Act, passed by Congress in 2001, places strict limits on how long a government may detain a noncitizen without bringing charges. He contrasted that with the Padilla case.

"Isn't it curious that an alien is treated better than a citizen?"

UPDATE - Michael Garcia, writing in Tuesday's Washington Post reports that the judges were concerned about tying the Presidents hands. Responding to a series of questions from Judge Wesley, defense lawyers conceded that a president had the right to hold and interrogate a suspect who posed an imminent threat.

Mark Hamblett writing in Tuesday’s New York Law Journal suggests that if Judges Pooler, Wesley and Parker decide that jurisdiction is properly in South Carolina, where Padilla is being held, the panel could avoid having to decide the scope of the president's powers and the degree of judicial review.

If the 2nd Circuit takes this "easy" way out, the 4th U.S. Circuit Court of Appeals would decide whether Padilla could continue to be held without defense lawyers being able to speak to him. The 4th U.S. Circuit Court of Appeals is considered by many as likely to take the most expansive view presidential powers.

The 4th Circuit has ruled in favor of the government in another case of an American citizen designated as an enemy combatant, but that case involved Esam Hamdi, who was apprehended outside of U.S. jurisdiction on the battlefield in Afghanistan.

Dirty Bomber Case Gets Hearing

The case of Jose Padilla, the alleged "dirty bomber," will be before the 2nd Circuit Court of Appeals on Monday.

Padilla is suspected of involvement in a plot to obtain and detonate a radioactive weapon or "dirty bomb." He was arrested in May 2000 as a material witness and was then designated an "enemy combatant." Padilla, a U.S. citizen, has been held in a military prison, without access to lawyers since last year.

Mark Hamblett, writing in the New York Law journal, explains that the government is appealing a court ruling that lawyers must be allowed to meet with Padilla at the South Carolina brig where his being held as an enemy combatant. The government argues that any meeting between defense lawyers and Padilla would jeopardize the interrogation of Padilla and the effort to to prevent more terror attacks and capture al-Qaida members.

The government also argues that Padilla is being held under the laws and customs of war which recognize no right of enemy combatants to have access to counsel to challenge their wartime detention.

This case is an important test of the judicial branch of government's ability to check the exercise of power by the executive branch. The courts' rulings in this case may give us some information about the limits of judicial secrecy. I have been concerned about judicial secrecy since I learned about the "secret case” before the Supreme Court. You can read my posts about judicial secrecy here.

Does Security Require Secrecy?

Yesterdays’s decision by the supreme Court to hear the appeal concerning the Guantanamo Bay prisoners has generated a great deal of publicity about judicial secrecy. A number of the articles I have read, specifically mention the “secret case” I have posted about. This is encouraging. I had been disappointed that only a few papers and fewer blogs were concerned about a federal case not having a public record.

The USA Today, in this editorial, begs the Supreme Court to hear the “secret case.” Doing so, asserts the USA today, is the best way for the government and civil liberties groups debate the proper balance between national security and an open judicial system.

In this counter piece, Paul D. Kamenar, contends that it’s not imperative for the Supreme Court to review these cases concerning judicial secrecy. If it doesn’t, “Congress is free to enact remedial laws if it thinks the balance favoring national security over openness and civil liberties has gone too far.”

Referring to the “secret case, ”Kamenar writes:

In M.K.B. vs. Warden, a case pending review before the Supreme Court, an illegal alien was detained after 9/11 because he may have had some information about one or more of the hijackers. Even though he has been released on bond, he still wants federal authorities to justify the secrecy surrounding his arrest and detention.

In the Supreme Court, the alien is challenging neither the lawfulness of his detention nor his deportation proceedings; the only issue is whether the proceedings should have been made public. Notably, the media failed to challenge the closed hearings, even though a news story about the case was published last March.

I assume, always a dangerous act in legal matters, that most people would conclude the Supreme Court agreed to hear the Guantanamo Bay case because it disagreed with the decision of the D. C. Circuit Court of Appeals’ decision. That is not necessarily so.

Scott W. Johnson, “The Big Trunk," at Power Line, has posted this interesting analysis about the Guantanamo Bay case:

Chief Justice Rehnquist has some kind of a sixth sense that has led him to write books on the highly unusual issues that his official duties have brought before him.

In 1998 he published All the Laws But One, a legal history of civil liberties in wartime, three years before the United States was attacked on its own soil. Based on my reading of that book, I believe that Rehnquist would love to redress the existing balance in favor of judicial deference to the executive branch on civil liberties issues in wartime.

The last chapter of All the Laws But One is titled "Inter arma silent leges," the Latin maxim that "the laws are silent in wartime." Rehnquist concludes the chapter: "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis of the government's claim of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."

The Big Trunk’s insights could apply equally to the “secret case.”

In this article about the Guantanamo Bay case, Tony Mauro, writing in the Legal Times, quotes University of Maryland School of Law professor Michael Greenberger: "It is one of the major international law issues that have been raised, and it is a wonderful vehicle for the Court to consider the balance between national security and due process."

The suits were filed on behalf of 12 Kuwaitis, two British and two Australian citizens captured in Pakistan or Afghanistan after the 9-11 terror attacks. The government contends that U.S. courts have no jurisdiction over the aliens held at Guantanamo Bay. Giving the detainees access to courts would "directly, and perhaps gravely, interfere with the executive's conduct of the war and divert the attention of the military from ongoing hostilities abroad to courtrooms at home,"

The U.S. Court of Appeals for D.C., ruled for the government, relying on the 1950 Supreme Court decision in Johnson v. Eisentrager. Eisentrager, involved German prisoners seized by the United States in China and tried in Germany after World War II. The high court ruled then that because the Germans were aliens and were not on U.S. territory, they had no right to seek habeas review in U.S. courts.