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Calling it the “most egregious recent example of an alarming trend toward excessive secrecy in the federal courts,” a national journalism group has filed a friend-of-the-court brief urging the U.S. Supreme Court to open the sealed records of the habeas corpus case of South Florida resident Mohamed K. Bellahouel. “This case has been conducted in extraordinary, and unjustifiable, secrecy,” wrote the attorneys for the Arlington, Va.-based Reporters Committee for Freedom of the Press in their amicus brief, filed Monday. “Even the limited available information demonstrates a cavalier disregard for First Amendment values by the 11th Circuit and district court [in Miami].” Shortly after the reporters committee filed its brief, the Supreme Court justices signaled their interest in Bellahouel’s case, which is listed on the court’s docket only as M.K.B v. Warden, et al. They instructed Solicitor General Theodore B. Olson — who three weeks ago waived the U.S. Department of Justice’s right to respond to Bellahouel’s arguments seeking review of his case — to reply in writing by Dec. 3 to Bellahouel’s petition for a writ of certiorari. Bellahouel was detained by federal authorities in 2001 and 2002 in connection with the government’s post-Sept. 11 terrorism investigations. In January 2002, the federal public defender’s office in Miami filed a habeas petition seeking his release. In March 2002, he was released. But Bellahouel and the federal public defender’s office have persisted in seeking to open the records of the case. The Miami Daily Business Review first reported about Bellahouel’s case in March after a mistake by a docketing clerk at the appeals court briefly revealed its existence. Other facts came to light in July, when the federal public defender’s office in Miami filed Bellahouel’s self-censored petition for Supreme Court review of a sealed March 31 judgment by the 11th U.S. Circuit Court of Appeals. That ruling ordered that Bellahouel’s case be kept secret. According to Bellahouel’s petition for a writ of certiorari, the 11th Circuit issued “a sealed and unpublished judgment” ordering U.S. District Judge Paul C. Huck to docket the case publicly while upholding Huck’s refusal to unseal any filings in the case. Neither Huck nor the 11th Circuit offered any explanation as to why they sealed the case, the petition said. In its 12-page amicus brief, the reporters committee asks the justices to declare the 11th Circuit’s sealed judgment unconstitutional. The committee encourages the high court to use the case “to clarify that the public has a constitutional right of access to habeas corpus proceedings and records.” The brief accuses the 11th Circuit of approving “a drastic departure” from judicial norms by Judge Huck. “The district court’s failure to issue a sealing order, make findings, explore less restrictive alternatives, or give the public an opportunity to be heard constitutes an egregious violation of well-settled law,” the brief said. The 33-year-old Reporters Committee for Freedom of the Press is a voluntary association of reporters and editors whose purpose is to defend the First Amendment rights and freedom of information interests of the news media. Its brief was prepared and filed by in-house attorneys Lucy A. Dalglish, Gregg P. Leslie and James A. McLaughlin. Dalglish is also the group’s executive director. The reporters committee has played a role in hundreds of press freedom cases during the past two decades, often in amicus briefs filed with the Supreme Court. Last month for example, in a case styled Doe v. Chao, the committee urged the court to recognize a limit on damages under the federal Privacy Act. Richard J. Ovelman, a prominent South Florida First Amendment lawyer, said the press group’s independent intervention would carry weight with the justices. He said amicus briefs are usually not filed until after the Court has agreed to review a case, but an early amicus in an important case can “assist the Court” in granting review. “It can do that for a couple of reasons — one is that it can show the importance of the case — and sometimes it raises points that the party to the case either can’t raise or doesn’t know to raise,” said Ovelman, a partner with Jorden Burt in Miami. Bellahouel is among a wave of new cases fueled by the Bush administration’s war on terrorism that have landed recently at the Supreme Court. It is also among the least known, and the odds are long that the justices will grant a full review. Still, the facts and issues involved in Bellahouel’s case are compelling. SECRET AND UNCORROBORATED Bellahouel, an Algerian immigrant who lives in Deerfield Beach, Fla., near Fort Lauderdale with his American-born wife, was detained in secret for five months during the post-Sept. 11 dragnet. He was one of approximately 1,200 young Arab and Muslim men detained by the government during that period. A veterinarian by training, Bellahouel, now 34, came to the FBI’s attention because he worked as a waiter at a Middle Eastern restaurant, in the town of Delray Beach, Fla., that was a favorite of Mohamed Atta and Marwan al Shehhi, who later were identified as the leaders of the Sept. 11 attacks. In a sworn statement obtained by the Daily Business Review in March, the chief of the FBI’s International Terrorism Operations Section explained the basis for Bellahouel’s detention to an immigration judge. Agent Michael E. Rolince said it was “likely” Bellahouel had waited on Atta and al Shehhi, and he cited the uncorroborated testimony of an unidentified movie theater ticket agent who said she saw Bellahouel go into the theater with another Sept. 11 hijacker, Ahmed Alnami. Bellahouel was picked up on Oct. 15, 2001. He was held on the charge of failing to comply with the conditions of the student visa he received when he entered the United States in November 1996. In November 2001, U.S. Immigration Judge Neale S. Foster in Miami relied on the FBI statement to deny bond to Bellahouel. Bellahouel was transported to Alexandria, Va., to testify before a federal grand jury investigating the so-called 20th hijacker, Zacarias Moussaoui. Bellahouel’s testimony, if any, is under seal. While in custody in January 2002, attorneys for Bellahouel filed his habeas petition in U.S. District Court in Miami seeking his release. It has yet to see the full light of day. The petition named the former warden of the Federal Correctional Institution in southern Miami-Dade, Monica S. Wetzel, as a defendant, and was filed by Paul M. Rashkind, chief of appeals for Federal Public Defender Kathleen M. Williams. The release issue became moot in March 2002 when authorities apparently concluded Bellahouel was not a threat and allowed him to post a standard $10,000 bond pending the completion of his immigration case. The efforts of Bellahouel and the federal public defender’s office to open the case to the public continued. For the next year, the case proceeded in absolute secrecy. It wasn’t listed on public dockets in Miami, where it was before U.S. District Judge Huck. Nor was it listed later at the appeals court in Atlanta. Even the case number was kept secret. In March, the Daily Business Review first reported on the case. The Review found altered court calendars, a rare closing of an appeals court courtroom and a clerk’s computer mistake, which alerted the Review to the existence of the case. In mid-June, Bellahouel’s case suddenly appeared on the U.S. District Court’s public docket in Miami. But other than the case number, 02cv20034, virtually every other detail of the case, including the names of the parties and their lawyers, remains sealed. Why that happened was unclear until July, when Rashkind filed Bellahouel’s petition for a writ of certiorari at the Supreme Court. The petition disclosed the existence of the 11th Circuit’s sealed judgment. FIRST AMENDMENT GUARANTEE Because of lower court gag orders, the publicly accessible version of Bellahouel’s petition to the Supreme Court is heavily censored. Entire pages are blanked out, including Bellahouel’s name. Only his initials, M.K.B, identify Bellahouel. The justices received an unredacted copy for their eyes only. The Reporters Committee for Freedom of the Press argued the court-imposed secrecy “has prevented the public and the news media from monitoring the proceedings in any meaningful way, despite the potentially significant news value of the case.” Indeed, other than several articles published by the Review, only a handful of news stories about Bellahouel’s case have appeared, including one last week in The Christian Science Monitor that referred to Bellahouel only by his initials. The Reporters Committee cites case law, including Richmond Newspapers Inc. v. Virginia, to argue that the court should acknowledge a First Amendment guarantee of access to federal habeas corpus cases. That 1980 case found a public right of access to criminal trials. Habeas proceedings are civil actions but involve elements of criminal cases. Because of that, the brief says, “the press and the public have a legitimate interest in knowing why M.K.B. has been detained and is now being deported, particularly given the government’s allegations that M.K.B. associated with terrorists.” The brief said Bellahouel’s case “could spark a healthy public debate about the means by which the government is conducting the war on terrorism.” The lower courts’ failure to meet “rudimentary obligations” of oversight in a case as important as Bellahouel’s warrants full review by the Supreme Court, the brief argues. “If the district court closed M.K.B’s habeas corpus proceeding to protect national security interests, it should be required to say so, and make findings in support; if its reason was something else, it should be required to identify the reason on the record.”

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