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MIAMI — In a setback to media organizations and civil liberties groups, the U.S. Supreme Court on Monday declined without comment to review Florida resident Mohamed Kamel Bellahouel’s appeal of federal court orders in Miami and Atlanta that kept his habeas corpus case completely secret. The case of Bellahouel, who was detained for five months after the Sept. 11 attacks, was cloaked so completely by order of U.S. District Judge Paul Huck and the Eleventh Circuit U.S. Court of Appeals that its very existence was hidden until the Miami Daily Business Review, a Recorder affiliate, chanced to discover it nearly a year ago. The extraordinary secrecy enveloping Bellahouel’s case extended to the Supreme Court itself, where Bellahouel was identified by his initials only. On Monday, the Supreme Court also approved a decision by Solicitor General Theodore Olson to file under seal the entire government brief in opposition to Bellahouel. The high court’s ruling was a major disappointment to 23 news media and legal organizations — including American Lawyer Media Inc., which owns the Daily Business Review, and The New York Times — that had come together under the leadership of the Arlington, Va.-based Reporters Committee for Freedom of the Press to petition the justices to conduct a full review of Bellahouel’s case. In November, the national journalists’ group told the justices that Bellahouel’s case was the “most egregious recent example of an alarming trend toward excessive secrecy in the federal courts.” On Monday the group’s executive director, Lucy Dalglish, said in a statement that the Supreme Court’s decision allowing the Justice Department to file its arguments against Bellahouel completely under seal “may be unprecedented.” “I’m still having trouble wrapping my head around the idea that the government can file a brief with the Supreme Court entirely in secret,” she said in response to the Supreme Court’s denial of certiorari. The justices’ refusal to take up Bellahouel’s appeal contrasted with its decision Friday to consider whether President Bush had the authority to detain indefinitely an American who was seized on U.S. soil by declaring him an enemy combatant. That is one of four terrorism-related cases the justices will hear in April and decide by the end of the current term. All four will ask the court, in varying degrees, to define the authority of the executive branch in times of war. But they also test the power of the court itself, and other federal courts, to review what the president has done. In the Bellahouel case, “we may never know what really was going on,” said coalition attorney Thomas Goldstein, of Washington, D.C.’s Goldstein & Howe. “Our hope was that, even if the justices decided the case needed to be essentially secret, they would make the lower courts give some kind of an explanation, or at least a signal that the need for secrecy had been given serious consideration. Without that, it’s hard to see how the public can have confidence in the process.” The court’s ruling on Monday also denied a motion by the Reporters Committee and the news organizations to intervene as parties in Bellahouel’s case. Those news groups include The Washington Post, Gannett Co., Knight Ridder, ABC, CNN, the Society of Professional Journalists, the American Society of Newspaper Editors and the American Immigration Lawyers Association. Federal authorities detained Bellahouel, an Algerian who is married to an American, on an immigration charge a month after the Sept. 11 attacks. Bellahouel came to the FBI’s attention because the Deerfield Beach, Fla., resident worked as a waiter at a Middle Eastern restaurant in Delray Beach, Fla., that was patronized by Mohamed Atta and Marwan al Shehhi, later identified as the leaders of the Sept. 11 attacks on the World Trade Center. An employee at a nearby movie theater also told the FBI that she saw Bellahouel with another hijacker, Ahmed Alnami. While no criminal charge was ever filed against him, Bellahouel was imprisoned for five months. During that time, he was taken to Virginia to testify before a federal grand jury. With the help of the Miami federal public defender’s office, he sought to win his release by filing a petition for a writ of habeas corpus in U.S. District Court in Miami. The release issue became moot when the government, apparently convinced Bellahouel was not a threat, allowed him to post a standard $10,000 bond pending the completion of his immigration case. Bellahouel has been charged with overstaying a student visa. Deportation proceedings are pending as Bellahouel has sought to adjust his status to allow him to stay in the United States. Meanwhile, his habeas case proceeded in secret — first before Judge Huck, then before an appeals panel at the Eleventh Circuit U.S. Court of Appeals comprising Judges Ed Carnes, Stanley Birch Jr. and Ninth Circuit Senior Judge Procter Hug Jr. All parties were gagged. A mistake by an appeals court clerk later left clues to the case’s existence on the public record. Last summer, after failing to open the case, Paul Rashkind, chief of appeals for the federal public defender’s office in Miami, filed an appeal at the Supreme Court. The appeal was unusual in that much of what was filed on the public record was blanked out to comply with lower court gag orders. Rashkind declined to comment Monday. Dan Christensen is a reporter with Miami Daily Business Review, a Recorder affiliate.

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