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Supreme Court decision may limit access to terror cases
Court declines appeal on 9/11 secrecy
Supreme Court decision may limit access to terror cases
By Warren Richey
The Christian Science Monitor - February 24, 2004
The US Supreme Court has given a green light for the government to conduct certain federal court cases in total secrecy.
In a case with major implications for public access to the courts, as well as the war on terror, the nation's highest court said Monday it will not examine the circumstances surrounding a habeas corpus appeal filed by an Arab immigrant challenging his detention during the post-9/11 investigation. The proceedings were conducted under a government secrecy request upheld by federal judges.
The Bush administration considers the issue so sensitive that its brief to the high court was filed under seal. The government took that unusual action even though the individual at the center of the case - an Algerian living in South Florida - has been free on a $10,000 bond for two years.
The case, M.K.B. v. Warden, was being closely followed by legal experts because it asked the high court to spell out whether there is a constitutional requirement that judicial proceedings in the federal courts be conducted in public - or at least noted somewhere on the public record.
Administration officials say that public records and open court hearings involving terror suspects could provide Al Qaeda a road map of US counterterror efforts.
Critics of this approach say the government has the ability to seal certain portions of court hearings for security reasons, but that it is a dangerous practice to allow the government to conduct certain cases in total secrecy. "We are moving toward an entire system of secret justice," says Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press.
Despite its decision not to hear the secret trial case, the Supreme Court has already positioned itself at the center of the national debate over civil liberties and other implications of the war on terror. Last Friday, the high court agreed to take up a potential landmark case involving the indefinite detention of alleged nuclear "dirty bomber" Jose Padilla.
At issue in that case is whether President Bush has the power to order an American citizen who has been arrested on American soil to be held indefinitely without charge or access to a lawyer because he has been designated by the president to be an enemy combatant.
To resolve that case, the justices must examine the scope of presidential power in times of national emergency.
In addition, the court has agreed to decide two other major terrorism cases. One deals with the indefinite detention of Yaser Hamdi, a US-born Saudi, who was captured in Afghanistan and is being held in a Virginia military prison as an enemy combatant. The other deals with the detention of more than 600 Al Qaeda and other prisoners being held as enemy combatants at the US naval base at Guantănamo Bay.
The three terrorism cases are expected to be argued at the high court in April.
The secret trial case that the court refused to consider involved the circumstances surrounding a habeas corpus appeal filed by Mohamed K. Bellahouel. Mr. Bellahouel, who is married to a US citizen, was detained for allegedly overstaying his visa. His detention was extended to permit the FBI to conduct an investigation of him and then question him about alleged links to two of the 9/11 hijackers.
The case appears to be an effort by the Bush administration to extend to the federal courts its policy of conducting immigration hearings dealing with potential terrorism suspects in total secrecy.
http://www.csmonitor.com/2004/0224/p04s01-usju.html
Court declines appeal on 9/11 secrecy
From Bill Mears - CNN Washington Bureau
WASHINGTON (CNN) Feb. 23, 2004--The U.S. Supreme Court gave the government the power to pursue certain terrorism cases in near total secrecy Monday, declining an appeal by an Algerian immigrant detained after the attacks of September 11, 2001.
Without commenting, the justices refused to intervene in the issue over whether the former detainee and media organizations had the right of access to sealed court proceedings.
Mohamed Kamel Bellahouel's attorneys said he was never charged with a crime and deserves public scrutiny to prove his innocence. The lower federal courts have released little about the case, and lawyers are forbidden from commenting. Court hearings have been closed, and records are sealed. Officially, Bellahouel is identified only by his initials M.K.B.
A clerical error by a federal appeals court inadvertently made some details public, including Bellahouel's identity. The Justice Department has said names and details about detainees in such cases must remain secret to preserve national security.
Even the government's legal brief to the high court was kept under wraps, with Solicitor General Theodore Olson saying, "This matter pertains to information that is required to be kept under seal."
Many of the details surrounding Bellahouel were first reported by the Daily Business Review, a Miami, Florida, newspaper. Bellahouel, 34, was one of hundreds of mostly Muslim or Arab men rounded up after the September 2001 attacks. He denies any involvement in terrorism.
"What happened was I believe unjust and inhuman," he told CNN in November. "And I think it was a lot of discrimination on it."
After working as a waiter in Florida, Bellahouel was reportedly questioned by the FBI and taken before a federal grand jury as a material witness. He allegedly served meals in the Miami area to two of the September 11 hijackers, Mohamed Atta and Marwan Al-Shehhi , shortly before the attacks.
http://www.cnn.com/2004/LAW/02/23/scotus.terror.secrecy/index.html
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