Blackout of Justice

Mohamed K. Bellahouel was jailed for five months in the aftermath of Sept. 11, 2001 . . . but according to the courts, he did not exist

From the Winter 2004 issue of The News Media & The Law, page 7.

By James McLaughlin

It is rare, perhaps unprecedented, for a coalition of news organizations to seek to join as parties to a case that is already pending before the U.S. Supreme Court. Then again, it’s rare for a civil action in federal court to be litigated as though every pleading contained a dire national secret.

But in the case of Mohamed Kamel Bellahouel — or as he’s known on the Supreme Court docket, “M.K.B.” — the normal rules don’t apply.

Bellahouel, an Algerian-born waiter who was secretly detained by U.S. authorities after the Sept. 11, 2001, terrorist attacks, has asked the high court to decide whether the extreme secrecy with which his case was handled violates the First Amendment. On Jan. 2, a diverse coalition of 23 media and public interest groups, assembled by The Reporters Committee for Freedom of the Press, asked the Court to let them join in Bellahouel’s appeal.

Others joining the motion to intervene include such media powerhouses as The New York Times, The Washington Post, CNN, ABC, Gannett, Knight Ridder and Hearst, as well as public interest groups such as People for the American Way. The motion was filed “to make sure the public interest in access to these court proceedings and records is adequately represented,” said Eric Lieberman, associate counsel at The Washington Post.

It is unusual for would-be intervenors to seek to join a case at the U.S. Supreme Court level, rather than at a lower court. But as Thomas C. Goldstein, the coalition’s lawyer, points out, “Usually, there’s an opportunity to intervene in the lower courts.”

“Here, the lower court proceedings were entirely secret,” he says.

Detained without cause?

B ecause virtually all information about Bellahouel’s case is being kept from the public, most of what is known comes from the reporting of Dan Christensen, who broke the story in the Miami Daily Business Review last March. (See Guest Column, page 11.) Christensen discovered the case only because a clerk at the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, inadvertently allowed Bellahouel’s name and case number to appear briefly on the court’s argument calendar.

When that information abruptly disappeared from a later version of the calendar, Christensen’s curiosity was aroused. He did some investigating, and unearthed an extraordinary set of facts.

As Christensen reported in March and September of last year, Bellahouel, a veterinarian in his native Algeria, arrived in the United States on a student visa in November 1996 to study biology at Florida Atlantic University. He eventually ran out of money and put his studies on hold, overstaying his student visa. He also married an American citizen.

Bellahouel’s life, like so many others, was irrevocably changed by the attacks of Sept. 11. Although no one has ever charged him with having any role in the attacks, Bellahouel was rounded up by U.S. authorities and imprisoned at Krome Detention Center in Miami. For five months, he was secretly imprisoned there.

The reasons for Bellahouel’s detention remain murky to this day. He had overstayed his student visa, but that is a minor offense for which a person is rarely jailed, particularly one who is married to an American citizen. Rather, it appears that Bellahouel was detained as a “material witness” as a result of some rather innocuous connections to three of the Sept. 11 hijackers.

According to a Sept. 25, 2003, story by Christensen, an FBI agent stated in an affidavit that Bellahouel “likely” served meals to two of the Sept. 11 hijackers, Mohamed Atta and Marwan al Shehhi, while waiting tables at a Middle Eastern restaurant in Delray Beach, Fla. The affidavit also reportedly says Bellahouel was seen entering a movie theater with a third Sept. 11 hijacker, Ahmed Alnami.

If there was a more substantial basis for imprisoning Bellahouel than these isolated encounters, it has never been publicly disclosed.

Ultimately, the government concluded Bellahouel was harmless and released him on $10,000 bond. Immigration proceedings relating to his expired student visa are still pending.

The case that wasn’t there

While still in prison in January 2002, Bellahouel filed a legal challenge to his custody. That’s when the real secrecy began.

The case was assigned to U.S. District Judge Paul C. Huck in Miami, yet the grounds of the petition are unknown because all documents have been sealed.

For more than a year, the petition — known as a “writ of habeas corpus” — was litigated in absolute secrecy, even as it made its way to the U.S. Court of Appeals in Atlanta (11th Cir.). Every pleading was filed under seal. Every hearing was held in a closed courtroom. Most remarkably, the case’s very existence was withheld from the public docket. In short, there was literally no public record that Bellahouel had brought a case.

Notably, the Eleventh Circuit, in which the U.S. District Court in Miami is located, is one of the few courts in the country that has explicit precedent banning the use of secret dockets. In the 1993 bribery case United States v. Valenti, the court ruled that recording proceedings on a nonpublic docket is a violation of the First Amendment because doing so “can effectively preclude the public and the press from seeking to exercise their constitutional right of access” to judicial proceedings.

Nevertheless, every proceeding in Bellahouel’s case was conducted on a secret docket for nearly 18 months. Even after the case’s existence was publicly reported by Christensen, in March 2003, it continued to be litigated off the docket. Finally, on June 18, the case suddenly appeared on the public docket — but with 63 of the 65 entries listed as “SEALED.”

To this day, despite widespread media attention to Bellahouel’s story, the docket remains as cryptic as ever. Even such basic information as the names of the parties and their lawyers is missing. All 65 docket entries begin with the word “SEALED,” and few give any further details. The majority of the entries simply read, “SEALED MOTION” or “SEALED DOCUMENT.”

Says Goldstein, “It seems that the courts may have just taken the easy route of not even considering the factors relevant to sealing a case.”

Secrecy in the Supreme Court

Bellahouel’s petition for review is now before the U.S. Supreme Court, listed simply as “M.K.B. v. Warden.”

In July, Bellahouel’s attorney, Paul Rashkind, asked the Court to decide whether the lower courts’ secretive handling of the case violated the First Amendment’s guarantee of a public right of access to judicial proceedings.

“The world has changed since 9/11,” Rashkind acknowledged in his petition for review. “But the common law and First Amendment rights to discuss and debate those changing events remain alive.” He urged the justices to take the case to “reinforce [First Amendment] rights in a time of increased national suspicion about the free flow of information and debate.”

Ironically, Rashkind’s arguments were themselves partially redacted. Large chunks of the petition for review — sometimes entire pages — are blanked out, a rarity in Supreme Court practice. Even the identification of the lower courts was withheld. Rashkind said the redactions were necessary to comply with a lower court order.

On Nov. 3, The Reporters Committee filed a friend-of-the-court brief urging the Court to review Bellahouel’s case. That same day, the justices ordered Solicitor General Theodore Olson to respond to Bellahouel’s petition. Previously, Olson had informed the Court that the government did not plan to file a response.

At that point, national news organizations began to get involved. Although a friend-of-the-court, or “amicus curiae,” brief was already on file, the groups decided that the more assertive strategy of seeking to intervene was warranted, given the extraordinary secrecy in the proceedings.

Simply filing an amicus brief “would not have given the media and public interest groups any rights in the case,” Goldstein says. “Unless intervention is granted, the case could go away entirely — for example, by a settlement. Or the relief granted could be more limited, because [Bellahouel] only seeks to unseal the materials in the lower courts rather than the Supreme Court.”

With the assistance of Goldstein, a regular practitioner before the Supreme Court, The Reporters Committee assembled a coalition of 19 news organizations and four public interest groups to intervene in the proceedings. On Jan. 2, 2004, the groups filed their motion, asking to be added as parties to the case.

“The media, unlike parties to a case who have other interests at stake, can be expected to represent vigorously the public’s right to access,” the coalition members argued.

In addition, the interests of the news media were not identical to those of Bellahouel — another reason to support intervening, rather than simply filing a brief.

“[Bellahouel’s] paramount interest is securing his freedom. The public has a broader interest,” says Lieberman, the Washington Post attorney. “It is not only in the outcome of the particular case, but in the operation of the judicial system as a whole.”

Accordingly, the intervenors “have an interest in access to records and proceedings in this case that will persist regardless of any change in [Bellahouel’s] circumstances,” the news groups argue.

A few days after the motion to intervene was filed, Solicitor General Olson submitted the government’s brief under seal — a move described as “almost unheard of” by Goldstein, whose practice is devoted principally to Supreme Court litigation.

The only public justification for the secret brief was a two-sentence note from Olson, asserting that “this matter pertains to information that is required to be kept under seal.”

As of early February, the Court had not yet ruled on Bellahouel’s petition for review or on the motion to intervene.

Unusual . . . but not unique

Just how rare is it for a case to be litigated off the public docket?

In the past, it would have been considered virtually unthinkable, though cases such as the Eleventh Circuit’s Valenti decision illustrate that it did sometimes occur. The docket is supposed to be the comprehensive record of the business of the courts, which are, after all, publicly financed institutions.

But there is mounting evidence that a significant percentage of the judiciary’s work is conducted off the record, in both federal and state courts.

The U.S. District Court in Miami may be the worst offender. In addition to sweeping the Bellahouel case under the rug, the court is now under attack for its secretive handling of the federal drug prosecutions arising from “Operation Millennium,” a complicated set of indictments against Colombian drug traffickers.

Recently unsealed court records show that federal judges in Miami concealed the existence of criminal proceedings against certain Colombian drug defendants, and aggressively sealed documents and closed hearings in related prosecutions. The federal court in Miami essentially employed a “dual-docketing” system, which is now being challenged as unconstitutional in the Eleventh Circuit appeal of convicted Colombian drug lord Fabio Ochoa-Vasquez. The Reporters Committee has filed a brief in support of Ochoa’s First Amendment position.

Ochoa is reputed to be a former lieutenant of Pablo Escobar, the infamous head of Colombia’s Medellin cartel who was gunned down in 1993 by U.S.-trained Colombian security forces. In 1999, Ochoa was indicted along with 32 other defendants as part of the “Operation Millennium” investigation by the Drug Enforcement Administration, U.S. Customs Service and FBI. In August 2003, he was sentenced to 30 years in federal prison.

In the course of preparing for trial, Ochoa’s defense lawyers — prominent Miami attorneys Roy Black and G. Richard Strafer — sought to investigate the other alleged players in the government’s case against their client. They quickly discovered that the information in the public docket was inadequate, misleading and sometimes deliberately incomplete.

The government’s case against Nicholas Bergonzoli, an alleged co-conspirator of Ochoa’s, had simply been kept off the public record entirely. The docket of the federal court in Miami reflected no proceedings involving Bergonzoli, even though records showed it had been transferred there from the U.S. District Court in New Haven, Conn., in February 1999.

“We plugged the case number [from the transfer order] into PACER [the online docketing system] and found nothing — no record of the case at all,” Strafer says. “We were absolutely stunned. We asked the clerk’s office about it, but they wouldn’t even acknowledge that the case existed.”

Later, Strafer and Black succeeded in forcing the disclosure of some records from Bergonzoli’s case, which revealed that Bergonzoli had been prosecuted on a secret docket for months, and had eventually pleaded guilty. The proceedings had been tainted by an alleged scandal involving the “sale” of plea agreements by DEA agents who were later suspended.

“The supersealing was no accident,” Strafer says. “It was part of an effort to conceal the scandal.”

The government’s case against another alleged Colombian drug trafficker, Julio Correa, was conducted in similar secrecy. The docket showed that Correa had been indicted and that a warrant for his arrest had been issued, but nothing else.

The official story was that Correa remained a fugitive from justice. In reality, Correa had been apprehended by U.S. authorities, pleaded guilty, worked as a government informant, and even served time in federal prison, according to numerous press accounts. Yet no evidence of such events ever appeared on his docket.

In August 2001, Correa was murdered while attending a soccer tournament in Colombia — and still, no record of his arrest, plea agreement or sentencing appears on the docket. If the rationale for the secrecy was to protect Correa, that rationale has long since been moot.

The use of secret dockets is not confined to the Eleventh Circuit, though. The St. Louis Post-Dispatch reported in October 2003 that “30 to 40 percent” of the criminal docket in the U.S. District Court for the District of Columbia is litigated in secret. The report attributes the rough estimate to an aide to the court’s chief judge, Thomas C. Hogan.

Likewise, a massive secret docket was recently exposed in Connecticut’s state court system. For years, so-called “Level 1” cases in Connecticut were secretly litigated off the docket, often for reasons that had more to do with shielding celebrities from embarrassment than protecting legitimately confidential information.

In December 2002, the Connecticut Law Tribune first reported the existence of the secret docket, which was used to conceal, among other things, the existence of divorce proceedings involving such public figures as Jack Welch, then the chairman of General Electric Co., and Clarence Clemons, the saxophonist for Bruce Springsteen’s E Street Band.

The Level 1 docket was so secret that even the state’s chief justice, William J. Sullivan, said he did not know of it. “I never ran into it in 19 years as a trial judge,” he told the Judiciary Committee of the Connecticut state legislature, after its existence was disclosed. “And five years on the appellate.”

A delicate balance

In the post-Sept. 11 world, the balance between protecting legitimate national security interests and safeguarding the public’s First Amendment rights is more delicate than ever. Certainly, there are circumstances in which secrecy is justified.

But a practice of “supersealing” cases to hide their very existence is more difficult to justify than selectively closing hearings or sealing individual records.

“When the entire case — even the name of the lower courts that heard it — is sealed, it’s clear that the judiciary has lost sight of the First Amendment’s requirements,” says Goldstein, the coalition’s attorney.

The public’s right of access to judicial proceedings has long been part of the Anglo-American legal tradition. “People in an open society do not demand infallibility from their institutions,” Chief Justice Warren Burger wrote in Richmond Newspapers, Inc. v. Virginia, a landmark 1980 Supreme Court decision on access to the courts. “But it is difficult for them to accept what they are prohibited from observing.”

There may be legitimate reasons why Mohamed K. Bellahoul was imprisoned in the aftermath of Sept. 11. There may even be a valid justification for conducting large portions of his case behind closed doors. But as long as the news media and the public are kept entirely in the dark, one can only wonder.