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The U.S. Department of Justice has made bold new assertions about the extent to which federal judges can hide information about the cases before them, according to censored documents filed at the U.S. Supreme Court. The government’s arguments are filed under seal in the case, which involves a Florida man who was detained after the Sept. 11 attacks on an alleged visa violation. But a heavily redacted reply brief filed by the Miami Federal Public Defender’s Office discloses the government’s main assertion that federal grand jury secrecy can be stretched to cover up even “ancillary proceedings that may touch on grand jury matters.” U.S. Solicitor General Theodore Olson advanced the Bush administration’s position in secret last month in defense of an appeal by Mohamed Kamel Bellahouel of Deerfield Beach. The appeal, turned aside by the Supreme Court without comment last week, sought to lift the extraordinary blanket of official secrecy that’s cloaked Bellahouel’s habeas corpus case since it began more than two years ago. Solicitor General Olson’s arguments in support of secretly docketing Bellahouel’s case are “a broad and revolutionary interpretation” of the law, Paul M. Rashkind, chief of appeals for Federal Public Defender Kathleen M. Williams wrote in his reply brief. “Never before has the court approved such a radical view … nor does the government point to lower courts that have done so,” he wrote. “This argument, attempting to justify the blanket sealing of all court filings, decisions and docket entries, flies into the headwind of all precedent respecting the First Amendment and common-law rights of public access.” The Supreme Court allowed Rashkind to file the heavily redacted reply brief for public viewing. It is shot through with numerous blank spaces where words, sentences and entire paragraphs were excised to comply with gag orders issued by U.S. District Judge Paul C. Huck in Miami and the 11th U.S. Circuit Court of Appeals in Atlanta. After reviewing a copy of the redacted reply, prominent New York City First Amendment lawyer Floyd Abrams criticized the government’s position. “I haven’t heard arguments as sweepingly broad as these made by the government before,” he said in an interview. “It seems to me we have to be very careful not to let the notion of ancillary or supplementary or connected proceedings so expand the rules relating to grand juries that they sweep up filings that have historically and invariably been public.” Rashkind, who’s under a gag order in the case, declined comment for this article. Olson’s office referred a request for comment to the Justice Department’s public affairs office, where spokeswoman Monica Goodling declined comment. CENSORED FILINGS Bellahouel, an Algerian native, was detained in October 2001 after FBI agents learned he’d worked as a waiter at a Delray Beach, Fla., restaurant frequented by two al-Qaida hijackers, Mohamed Atta and Marwan al-Shehhi. Investigators also were told that he may have gone into a movie theater with another hijacker, Ahmed Alnami. Bellahouel was held on an alleged violation of his student visa. Bellahouel, whose wife is a U.S. citizen, was held until March 2002 when authorities apparently concluded he was not a threat. His attempts to adjust his immigration status to avoid deportation continue. During his detention, he was transported to Alexandria, Va., to testify before a grand jury, the Miami Daily Business Review has reported. The grand jury was apparently the same one that indicted accused Sept. 11 co-conspirator Zacarias Moussaoui. Bellahouel petitioned for a writ of habeas corpus in federal court in Miami in January 2002 while still in custody. The case was assigned to Judge Huck, who immediately sealed it. The writ initially sought Bellahouel’s release. Later, it became his vehicle to try to open his case to the public. The courts didn’t acknowledge Bellahouel’s case until it landed in a heavily censored form at the Supreme Court last summer. His name does not appear publicly, and the case is styled only as M.K.B. v. Warden, et al. In Miami and Atlanta, the case remains eclipsed by secrecy orders. Olson, whose wife, Barbara Olson, was aboard the jetliner that al-Qaida hijackers slammed into the Pentagon, staked the Bush administration’s claim to expanded grand jury secrecy. He did it in support of keeping Bellahouel’s case off public dockets in U.S. District Court in Miami, where the case began, and at the 11th U.S. Circuit Court of Appeals in Atlanta. Court dockets reflect what transpires in a case and allows cases to be tracked as they move through the system. The Daily Business Review first reported about Bellahouel’s case a year ago after a court clerk’s mistake briefly included it on the appellate court’s public docket. Rashkind, in the name of Miami Federal Public Defender Williams, sought to pull his client’s case from the shadows by asking the Supreme Court to “air the constitutionality of this significant development in case handling by the courts below.” But the justices did not bite. The high court’s decision not to review the case was a disappointment to 23 media and legal organizations, led by the Arlington, Va.-based Reporters Committee for Freedom of the Press, that also had asked the high court to take the case. The coalition included American Lawyer Media Inc., the Review‘s parent company, and The New York Times. When it dismissed Bellahouel’s case, the Supreme Court also granted the government’s motion to keep secret its arguments in opposition to his appeal. Reporters Committee executive director Lucy Dalglish said that’s apparently the first time this has ever happened. “We are going on a path toward rampant court secrecy that I find very disturbing,” Dalglish said. But a parallel decision by the justices the same day to allow Rashkind to file redacted copies of his reply brief has revealed the government’s apparently unprecedented claims regarding grand jury secrecy. Federal grand juries are powerful investigative bodies that function largely outside the public eye. As envisioned in the Fifth Amendment, they are actually a protection for the accused who cannot “be held to answer for a capital or otherwise infamous crime” unless they’re indicted first by a grand jury. Grand jury secrecy is provided for in Rule 6(e) of the Federal Rules of Criminal Procedure. The rule requires the closure of criminal hearings and records relating to grand jury proceedings “to the extent necessary” to prevent their disclosure. Until now, experts say, that rule has not led prosecutors to take cases completely underground. “I’ve never understood Rule 6(e) to go as far as what I’m hearing you say,” said Neal R. Sonnett, a veteran Miami attorney and former president of the National Association of Criminal Defense Lawyers, when told about the government’s position in the Bellahouel case. NO CASE SUPPORT The lower courts have yet to articulate a basis for making and keeping Bellahouel’s case invisible. Thus, Rashkind wrote in his reply brief, the job of explaining fell to the Justice Department, which “speculates to fill the vacuum.” He claims the government could not identify a single case in which a court clerk was permitted to completely remove a case from the public docket. In contrast, he wrote, “thousands” of grand jury cases have been publicly docketed in ways that shield sensitive matters; the docket entries list titles such as “Sealed,” “Sealed Proceeding,” “In re Grand Jury Proceeding,” or substituting “Doe” for a witness’ name. Rashkind noted that the Supreme Court, in its handling of the Bellahouel appeal, showed precisely how cases could be publicly docketed while protecting sensitive information. “This court has docketed the present case in that spirit, as M.K.B. v. Warden, with a public docket describing generally the filings in the proceeding,” he wrote. “All of these place the public and media on notice that a sealed proceeding exists and allows them to then make a proper legal challenge in an individual case.” Rashkind went on to attack case law cited by Olson to buttress the government’s position. Those cases, he wrote, actually “undermine its argument that the docket and court filings must be completely sealed to satisfy tradition or rules.” For example, a 1998 U.S. Court of Appeals for the D.C. Circuit decision cited by Olson, In re Motions of Dow Jones & Co., “specifically refutes any claim that court rules require complete sealing of ancillary proceedings that may touch on grand jury matters,” Rashkind wrote. Rashkind also cited the Justice Department’s own guidelines for prosecutors who practice before a federal grand jury advising them what should and shouldn’t be kept secret. The guidelines say “Rule 6(e) does not cover all information developed during the course of a grand jury investigation, but only information that would reveal the strategy or direction of the investigation, the nature of the evidence produced before the grand jury, the views expressed by the members of the grand jury, or anything else that actually occurred before the grand jury.” Rashkind’s reply brief also discloses for the first time at least some of the issues kept under wraps by the courts. Essentially, he claims that Bellahouel’s Fourth, Fifth and Eighth Amendment rights were violated because the government “abused the immigration process to improperly detain him” in its zeal to transport him to Virginia to testify before the grand jury. OTHER SECRET CASES? The newly released court documents still provide no answer to the larger question of whether there are other cases being kept completely secret by the federal courts. The only other example that’s been reported nationally is the cocaine conspiracy prosecution in the U.S. District Court in Miami of Nicholas Bergonzoli, who pleaded guilty and was sent to prison in complete secrecy in January 2002. Defense attorneys for convicted Colombian drug boss Fabio Ochoa uncovered Bergonzoli’s case. In November, the federal public defender for the District of Columbia, A.J. Kramer, told the Review that the federal court there uses a secret docket to hide cases in which lives of cooperating witnesses who plead guilty to crimes may be in danger. Pleas are taken and sentences are handed down in secret, and there is no adjudication of guilt on the public record, he said. “There are definitely cases here that don’t show up on the docket,” Kramer said. “We agree to them because we feel that our clients would be in danger if their cooperation was on a public record.” Floyd Abrams suggested that such court secrecy practices could be broad. “There’s sort of a Catch-22 here,” he said. “One may never know how much is being kept secret precisely because the secrecy may be effective. We really have no idea how pervasive the problem is and how often the government takes this position.” Both Abrams and Neal Sonnett said that the Supreme Court, by refusing to review the Bellahouel case, set “precedent” that implicitly gave federal judges and prosecutors room to keep cases completely secret. “It certainly gives the government more freedom to ask for the same kind of secrecy in other cases,” Sonnett said. “And to the extent that kind of secrecy proliferates, I think it ultimately is detrimental to the criminal justice system.”

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