WASHINGTON The Supreme Court yesterday asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11 attacks.
The administration has refused to release the names and other details of hundreds of foreigners rounded up after the attacks, arguing that a blanket secrecy policy is needed to protect national security.
One of those immigrants, known only as M.K.B., challenged his detention. But even that has been shrouded in secrecy.
His appeal has reached the Supreme Court, only there is little written evidence that his case exists. Lower courts sealed all the legal filings, as well as the records of how his case was handled. The proceedings were held in secret.
That is unconstitutional, federal public defender Paul Rashkind of Miami argued in the case from Florida.
The Supreme Court should intervene, Rashkind wrote in an appeal, "to preserve and protect the public's common-law and First Amendment rights to know, but also to reinforce those rights in a time of increased national suspicion about the free flow of information and debate."
The administration told justices last month that it did not plan to file a response to the appeal. In a brief notice released yesterday, the Court said it has told the administration to give its side anyway. There is no specific deadline for the reply.
Because of a glitch at the 11th U.S. Circuit Court of Appeals in Atlanta, the M.K.B. records were briefly made public. A legal newspaper, the Miami Daily Business Review, reported that M.K.B. is 34-year-old Mohamed Kamel Bellahouel, an Algerian waiter who the FBI believes likely served meals to Sept. 11 hijackers Mohamed Atta and Marwan al Shehhi in the weeks before the attacks.
The newspaper reported that Bellahouel was released after five months, and after he had been taken to Alexandria, Va., to testify before a federal grand jury.
A spokesman for the U.S. attorney's office in southern Florida refused comment yesterday. The public defender told justices that lawyers are under a gag order and cannot discuss the case.
So far, the Supreme Court has not gotten involved in any cases involving the government's war on terrorism, but several possible prospects are pending.
In a case related to issues raised by M.K.B., public-interest groups have asked the Court to consider whether the government must disclose information about more than 700 immigrants arrested in the months after the terror attacks. The groups want the names of the detainees, names of their lawyers, dates they were picked up and the reasons they were detained. That case is Center for National Security Studies v. Department of Justice.
Bellahouel's appeal includes blank page after blank page, where the ruling would have been. The nine justices will be able to see all the information that is being withheld from the public in M.K.B. v. Warden, 03-6747.
"The fact that someone can be held like this, and there be no trail of the existence of the case is mind-boggling," said Michael Greenberger, a counterterrorism expert and former senior official in the Justice Department during the Clinton administration.
Greenberger said one or more justices must have been troubled, to request the response instead of allowing the case to pass unnoticed through the Supreme Court.
The immigrant's lawyer told the Court that the facts of his case "would make a significant contribution to the national debate about the detention and treatment of Middle Eastern persons, and there is no legitimate government interest permitting court-suppression of his ordeal."