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Bush administration tries to keep high court arguments secret

By The Associated Press
01.06.04

WASHINGTON — In an extraordinary request, the Bush administration asked the Supreme Court yesterday to let it keep its arguments secret in a case involving an immigrant's challenge of his treatment after the Sept. 11 terror attacks.

Mohamed Kamel Bellahouel wants the high court to consider whether the government acted improperly by secretly jailing him after the attacks and keeping his court fight private. He is supported by more than 20 journalism organizations and media companies.

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."

On Jan. 2, a coalition of journalism organizations and media companies asked the Supreme Court to let them join Bellahouel's appeal.

"It would be hard to imagine a case in which intervention in this Court is more clearly justified," Washington attorney Thomas Goldstein told justices in a filing on behalf of the groups.

Bellahouel's lawyer has urged justices to use the case "to preserve and protect the public's common-law and First Amendment rights to know."

Justices sometimes are asked to keep parts of cases private because of information sensitive for national security or other reasons, but it's unusual for an entire filing to be kept secret.

Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press — one organization in the media coalition — said she was disappointed by the government's request.

"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."

The Court is to decide later whether to consider Bellahouel's appeal and at the same time whether to allow the secret filing. Justices will be able to review the government's private arguments.

Bellahouel, an Algerian who worked as a waiter in South Florida, came under FBI scrutiny because hijackers Mohamed Atta and Marwan al Shehhi dined where he worked in the weeks before the Sept. 11, 2001, attacks.

He was among hundreds of foreigners rounded up after the hijackings. The government has refused to release names and information about the detentions, arguing that a blanket secrecy policy is needed to protect national security.

The Supreme Court rejected an appeal last year from newspapers that sought information about the detentions. Bellahouel's case asks the justices to consider whether the government violated the nation's long tradition of open court proceedings.

Lower courts kept private the existence of Bellahouel's case, M.K.B. v. Warden. Olson's filing deletes the name of the appeals court that ruled against Bellahouel.

Bellahouel, who is free on $10,000 bond, is known in court papers only as M.K.B. Because of a mistake at the 11th U.S. Circuit Court of Appeals in Atlanta, the M.K.B. records were briefly made public. A Miami legal newspaper reported his identity and said that he was released after five months, and after he had been taken to Alexandria, Va., to testify before a federal grand jury.

The media organizations and companies that asked the Court to let them become a party in Bellahouel's case include the American Society of Newspaper Editors, the Newspaper Association of America, Society of Professional Journalists and the Newspaper Guild-CWA.

The news groups can continue the appeal if Bellahouel is deported or if he reaches a settlement with the government, they argued in the filing.

"By participating in this case, the media aim to ensure that the proper balance is drawn between secrecy in the name of national security and the public's right to know," said Dalglish.


Update
High court won't hear detainee secrecy case
Algerian waiter's attorneys had asked justices to rule whether lower courts were right to block info from press, public. 02.23.04

Previous
High court to White House: Explain secrecy in detainee case
Lower courts sealed all legal filings, as well as records of how Algerian immigrant's case was handled. 11.05.03

Related

Official secrecy helps terrorists undermine democracy

By Douglas Lee Openness of U.S. judicial system has become a casualty in the war on terror. 01.13.04

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