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Washington-A Bush administration defense of secret judicial proceedings in a post-Sept. 11 challenge may encounter a more skeptical U.S. Supreme Court two years after the terrorist attacks. The high court last week asked the solicitor general to respond to a petition filed by Mohamed Kamel Bellahouel, an Algerian immigrant who was one of 1,200 Arab and Muslim men detained by federal authorities shortly after the 2001 attacks. M.K.B. v. Warden, No. 03-6747. Bellahouel is challenging the complete secrecy of his habeas corpus proceedings before a federal district judge and a three-judge panel of the 11th U.S. Circuit Court of Appeals-secrecy that hid the very existence of the case by keeping it off the public dockets. “These cases do get decided in context,” said Douglas Kmiec of Pepperdine University School of Law. He noted that the 3d Circuit endorsed the government’s policy of closed immigration hearings in terrorism-related cases shortly after Sept. 11. The ruling was clearly influenced by its proximity to the attacks, he said. “It’s not that we’re over the devastation but we all have resumed some level of greater sense of security,” he said. “If we look at the historical precedents, the Pentagon Papers case seems an apt one. “At the time the case was litigated, many people no longer believed Vietnam was the domino ultimately leading to the end of democracy. Given the fact we haven’t found any weapons of mass destruction, Osama bin Laden or Saddam Hussein, well, the threat is more distant.” The high court also should be skeptical because M.K.B. “seems to be illustrative of the administration’s heavy over-reliance on secrecy in the aftermath of Sept. 11,” said David Cole of Georgetown University Law Center. “They ultimately tried over 600 people in secret trials. They arrested over 1,000 in secret and are still refusing to disclose the identities of these individuals, notwithstanding the fact the FBI has determined virtually all of them had no connection to terrorism.” Bellahouel, a Florida resident, was a waiter at a Middle Eastern restaurant when he was detained in October 2001 by the Immigration and Naturalization Service for violating his student visa. He was later held by the FBI as a material witness in the Sept. 11 attacks. According to the FBI, he had waited on two of the hijackers at his restaurant and went to a movie with a third. After testifying before a grand jury, Bellahouel was released on an immigration bond in March 2002. In his high court petition, itself redacted in places, Bellahouel asked that the secret habeas corpus proceedings be found unconstitutional and said the government had detained him illegally after Sept. 11. He argued that the First Amendment was violated when the district and appellate courts heard and decided his habeas challenge to his detention without placing it on public dockets or giving their reasons for secrecy. Bellahouel, represented by the Miami federal public defender’s office, may still face deportation if he wins because of his visa violation. His status is unclear (he’s married to an American). It is not known how many cases like Bellahouel’s exist, because they are secret, said Erwin Chemerinksy of the University of Southern California Law School. “The Supreme Court has said there is a First Amendment right of the press and public to attend, let alone be aware of, judicial proceedings,” he said. “To go to a totally secret judicial procedure is at odds with that and to have an undisclosed number of completely secret proceedings is enormously troubling. As far as we know, it’s unprecedented.” Besides the First Amendment, he added, the defendant has a Sixth Amendment right to an open trial. “No one denies the government can close parts of proceedings when there is a need for secrecy,” he said. “I think this raises a profoundly important question of whether totally secret judicial proceedings can be reconciled with the Constitution.” Bellahouel also has a due process right to a public adjudication, absent some extraordinary reason, said Cole. “The fact that the courts went along with this only underscores the need for some sort of public accountability,” he said. “It may well be this is one of those extraordinary cases that required absolute secrecy in every particular, but it may well be an instance of the courts failing to do their duty and simply deferring blindly to unfounded claims by the executive branch. “The problem with the entire process being secret is there is no public accountability, no ability for public to assess that.” But there is no public docket of grand jury actions, noted Paul Rosenzweig of the Center for Legal and Judicial Studies at the Heritage Foundation. “My initial instinct is what happened here isn’t totally out of bounds,” he said. “Clearly it shouldn’t be commonplace. On the other hand, I’m not willing to say it should be impermissible. “I can imagine situations where even the disclosure of the existence of a proceeding would do some damage.” Cole countered that grand jury proceedings are usually secret because they’re investigations, but that “before any coercive action can be taken against an individual, there has to be a public indictment and public trial.” Cole said there are ways to tailor secrecy to meet specific needs. “The notion an entire case is so secret we can’t even list it on a public docket is quite remarkable,” he said. Kmiec said the Supreme Court has established that openness ought to be the rule. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). “But all of that has to be weighed against the government claim that any part of this that would be disclosed would be damaging to its overall efforts to conduct its terrorism investigation,” Kmiec said. Kmiec said he doubts the Supreme Court will take Bellahouel’s case. “The courts must feel as they always do in this area, particularly without competence,” he said. “The claim that anything that would be revealed would undermine our ability to protect ourselves is one no judge would easily discard and no judge can easily evaluate because it’s all based on speculation-we hope informed speculation.” Coyle’s e-mail address is [email protected].

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