It’s Time to go Back to the Basics

From the Winter 2004 issue of The News Media & The Law, page 4.

In these troubled times when national security seems to trump every argument civil libertarians raise regarding the loss of First Amendment rights and the public's right to know, it's time to remind our leaders that it's the People who have put them in power. And the People determined more than 200 years ago that the powers given our leaders are not unlimited.

Yes, it's time for a civics lesson for all of us — politicians and pundits, journalists and citizens. We apparently have collectively forgotten the principles upon which this country was founded. How else can one explain the secret federal court case of Mohamed Kamel Bellahouel?

Bellahouel is an Algerian-born waiter who was arrested in 2001 after he apparently waited on two of the Sept. 11 hijackers at a Delray Beach, Fla., restaurant (see cover story). He was jailed in a federal detention center and brought an action for a writ of habeas corpus, a petition essentially asking the court to order the government to justify his detention or let him go. After five months Bellahouel was released, but he continued his action, asking the court to order the records of his detention to be publicly released. Every document in his U.S. District Court and U.S. Court of Appeals case is sealed. It didn't even exist on the courts' public docket.

Unfortunately, the Bellahouel case is not an aberration. Federal judges lately seem to have deliberately ignored established law that bans secret imprisonment.

So let's review what we are supposed to know about American government. Let's call it "Civics in a Nutshell": Founding Father Alexander Hamilton wrote in 1788 in The Federalist No. 84 that a government policy that allows "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten" is a "dangerous engine of arbitrary government." Hamilton didn't pull that notion from thin air; he was quoting from the 18th century commentaries of English lawyer Sir William Blackstone, who called the habeas corpus act "the bulwark of the British Constitution."

Building on that notion, the U.S. Supreme Court found in 1980 in Richmond Newspapers v. Virginia that the public has a presumptive right of access to criminal trials. In 1984, it further developed the law in this area by declaring that a judge may close access to criminal proceedings only after making specific on-the-record findings that "closure is essential to preserve higher values and is narrowly tailored to serve that interest."

So how did we get to a point in this country where more than a thousand men were secretly arrested, jailed and deported on immigration violations? How can Arab and Muslim men be secretly arrested, indicted, convicted and imprisoned in secret? How can the U.S. Supreme Court be deciding a case that does not publicly identify who the petitioner is or what courts the case came from, and in which not one word of the solicitor general's response to the petition is publicly available?

Some of the "problem" comes from the way the government has handled terrorism cases. The Richmond Newspapers line of cases dealt with criminal trials. While some courts have extended protections for the public's right to know to civil and administrative proceedings, the Supreme Court has not yet addressed the breadth of the constitutional right of access to all types of court proceedings. The Justice Department has taken full advantage of the system by handling more than 750 of the detainee cases as immigration cases, administrative proceedings conducted entirely by the executive branch and, according to the Justice Department, not subject to constitutional protections afforded by the courts.

But we also know that some felony terrorism and drug prosecutions, particularly in Florida and Washington, D.C., have been conducted entirely in secret. None of the closures has followed the procedures required by the Supreme Court.

The public cannot object to secret justice if they don't know about it. Reporters must scour federal court dockets and look for suspicious entries. They should contact local criminal defense attorneys and ask whether entire cases are being conducted in secret. And they should contact immigration organizations to ask whether any local immigrants have disappeared.

We don't live in a dictatorship where people mysteriously disappear from the streets. This is the United States of America. And we should start acting like it.

— Lucy Dalglish