(for additional documents in this case, see the links at the end of this release)
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The U.S. Supreme Court is expected to issue an order on Monday, Feb. 23, in the case of M.K.B. v. Warden, the ultra-secret appeal of an Algerian-born man detained in Florida after the Sept. 11 attacks.
The detainee’s petition for review by the high court was on the court’s conference calendar for Friday, and decisions from conferences are usually announced early the next business day, although occasionally the Court defers decisions on petitions and motions.
The Court will likely decide both whether to take the case and whether to grant a motion to intervene filed by a coalition of 23 news and public interest organizations, including The Reporters Committee, The New York Times, The Washington Post, Reuters, Gannett, Hearst, ABC, and CNN. If the Court takes the case, arguments will probably be scheduled for the Court’s next term.
The appeal involves Mohamed K. Bellahouel, a 34-year old waiter who was secretly detained without charges by U.S. authorities in the fall of 2001, apparently on the basis of alleged contacts with three of the Sept. 11 hijackers. Bellahouel -– known only as “M.K.B.” on the Court’s docket -– brought a lawsuit challenging his detention. His case was litigated in such secrecy that it took a clerical error at the court of appeals for the public even to have a record of the case’s existence.
The secrecy persisted all the way to the Supreme Court, where Solicitor General Theodore Olson took the extraordinary step of filing the government’s brief opposing review entirely under seal.
In November, The Reporters Committee filed a friend-of-the-court brief arguing that the case is “perhaps the most egregious recent example of an alarming trend toward excessive secrecy in the federal courts, particularly in cases that bear even a tangential connection to the events of Sept. 11, 2001.”
Subsequently, in January, the coalition of media and public interest groups moved to intervene -– that is, join as parties to the case — in order to be in a better position to argue for public access to the proceedings. The Court’s decision -– whether it takes the case or not -– will have a significant impact on the degree of secrecy permitted in the federal courts.
Motion to intervene in M.K.B. v. Warden (PDF), 1/2/2004: https://www.rcfp.org/news/documents/20040102-mkbvwarden.pdf
Amicus brief in M.K.B. v. Warden (PDF), 11/3/2003: https://www.rcfp.org/news/documents/20031103-mkbvwarden.pdf
Background from “Behind the Homefront,” published by RCFP (includes additional links): https://www.rcfp.org/behindthehomefront/search.php?srch=bellahouel