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Official secrecy helps terrorists undermine democracy

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

We may be a lot closer to losing the war on terror than we realize.

Ever since clouds of smoke and dust overtook the New York sun on that September morning, we’ve been told our enemies’ primary target is our freedom. The terrorists want us to live in fear, our leaders said. They want to change our way of life. They want to shake the underpinnings of our democracy.

Well, they’re succeeding. Sadly, however, this success results not from anything the terrorists have done but from our government’s mistrust of its own people.

As has become clear in recent weeks, the openness of our judicial system has become a casualty in the war on terror. Hundreds, if not thousands, of U.S. residents were detained after the Sept. 11 attacks, but the government steadfastly has refused to release any information about who was detained and why. In doing so, the government cites national security, even though most of the detainees were released without charges being filed.

Now we learn this blanket secrecy followed the detainees who entered the judicial system. This secrecy, in fact, has so infected the judicial system that the government has asked the U.S. Supreme Court to keep under seal all arguments about whether Mohamed Kamel Bellahouel was improperly detained.

Ironically, the only reason we know of Bellahouel’s case is that a clerk at the 11th U.S. Circuit Court of Appeals mistakenly listed the case on the public docket for a brief period. Had the Miami Daily Business Review not discovered the case while it was on the docket, Bellahouel’s appeal to the Supreme Court likely would be taking place in complete secrecy.

As it is, we know only that Bellahouel (known as M.K.B. in court filings) is asking the Court to review the government’s detention of him and the lower courts’ willingness to litigate his case behind closed doors. Bellahouel reportedly is an Algerian waiter who worked in a South Florida restaurant frequented by two of the Sept. 11 hijackers. While in custody, Bellahouel filed a federal court action seeking his release.

The judge hearing Bellahouel’s case closed all proceedings in the suit and apparently ordered that the case not even be listed on the public docket. No terrorism-related charges ever were filed against Bellahouel, although he faces possible deportation for overstaying his student visa. According to the Miami newspaper, Bellahouel was released after five months and after he testified before the federal grand jury investigating Zacarias Moussaoui.

No information about the district court proceedings has been made public. All we know about the subsequent appeal is that the 11th Circuit conducted a secret oral argument on March 5, 2003, and issued a decision under seal approximately three weeks later.

This unprecedented secrecy continues in the Supreme Court. The government, in fact, initially declined to respond to Bellahouel’s request that the Court hear the case. After being ordered by the Court to respond, however, Solicitor General Theodore B. Olson filed a one-paragraph public response saying only that “this matter pertains to information that is required to be kept under seal.” Olson presumably at the same time filed a more complete response under seal.

While no one disputes the notion that investigations and prosecutions of terrorists require some secrecy, that need cannot justify the creation of secret court dockets and blanket closure orders. Our judicial system has been rooted in a presumption of openness, a presumption that can be overcome only in limited circumstances and only after evidence is introduced demonstrating why closure is necessary. Even when secret court proceedings or hearings are allowed, the presumption of openness has required that the existence of the case and its non-secret aspects be open and available to the public.

Bellahouel’s case is a drastic departure from this tradition. It exemplifies a completely secret court system, one hidden from the news media and the American people. No one knows how many cases like Bellahouel’s exist; for all we know, hundreds of detainees could be claiming mistreatment by the government. The government, of course, is happy to litigate these cases in secrecy. Why, after all, would it want to be accountable to its citizens for detentions that appear in many cases to be based on little more than racial profiling? The judiciary’s willingness to participate in this secrecy, however, is deeply troubling.

Unfortunately, courts in recent years have been increasingly willing to limit public access to the judicial system. Gag orders, anonymous juries and sealed court filings now are almost routine. Members of the public are denied the opportunity to review and search electronic court records. And, according to the Reporters Committee for Freedom of the Press, the federal court that heard Bellahouel’s case has for several years also maintained a secret docket for significant drug prosecutions.

In Bellahouel’s case, the Supreme Court has the opportunity to reverse this trend and to reaffirm the presumption of openness that is so vital to our court system and to an informed citizenry. The Reporters Committee and 22 other media organizations believe this opportunity is so critical they have taken the unusual step of asking the Court to allow them to become parties in Bellahouel’s appeal. How and when the Court will respond is anyone’s guess.

We need not guess, though, about the importance of this issue. How the Supreme Court responds will determine whether the government will be able to threaten something no terrorist bomb ever could — our open judicial system.


Bush administration tries to keep high court arguments secret

Immigrant asks justices to consider whether the government acted improperly by secretly jailing him after Sept. 11 attacks, keeping his court fight private. 01.06.04

U.S. can keep Sept. 11 detainee names, details secret
High court turns down request to review secrecy surrounding foreigners who were rounded up immediately following 2001 attacks. 01.12.04

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

Prosecutors want to ask potential jurors in terror case about religion
Federal judge in charge of Zacarias Moussaoui trial is to decide which questions will be allowed. 11.29.05

Judge's error in sealing affidavits hardly harmless
By Douglas Lee 4th Circuit finds judge failed to justify secrecy in case involving terrorism-related search warrants — but calls error harmless. 08.12.05

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Last system update: Friday, August 22, 2008 | 00:36:06
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