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Supreme Court won't hear secret 9/11 case

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Supreme Court won’t hear secret 9/11 case

  • In a setback for the news media, the high court declined to hear the case of Mohamad K. Bellahouel, rejected media efforts to intervene, and allowed the government to file a secret brief.

Feb. 23, 2004 — The U.S. Supreme Court said today that it will not hear a challenge to government secrecy in the case of Mohamed K. Bellahouel, a Florida man detained in the aftermath of the Sept. 11 attacks.

Bellahouel, identified in the Supreme Court docket only as “M.K.B.,” had asked the justices to consider whether the lower courts’ secretive handling of his case — 63 of the 65 docket entries are listed as “SEALED” — violates the First Amendment.

In a single order issued today without comment or analysis, the court rejected Bellahouel’s appeal, refused to allow a coalition of news and public interest organizations to join the case, and consented to the filing of a completely sealed brief by Solicitor General Theodore Olson.

The court’s grant of permission to file a secret brief, in particular, raised eyebrows among some who follow the Supreme Court closely.

“As someone who studies the Court’s docket very carefully, and has done so for years, I would say this is certainly unprecedented,” said Washington, D.C. attorney Tom Goldstein, who represented the coalition of news and public interest groups that sought to intervene.

Floyd Abrams, a prominent First Amendment litigator based in New York, had a similar reaction. “I cannot think of any other [Supreme Court] case in which there was a complete absence of publicly articulated reasons for the government’s position,” Abrams said.

Abrams was co-counsel to The New York Times in the landmark Pentagon Papers case of 1971, and has argued numerous cases before the Supreme Court.

Even in the Pentagon Papers case, which involved a dispute over publication of a top-secret government study of the war in Vietnam, the government filed two briefs: one under seal, and one for the public. As a result, Abrams said, the public was able to “pass judgment on the bona fides of the government’s position.”

By contrast, in Bellahouel’s case, “the public cannot tell what it is the government has to say, even at a broad level of abstraction,” Abrams said.

The decision also came as a disappointment to the twenty-three media and public interest organizations that had sought to intervene in the case, contending they were better situated than Bellahouel to press the public’s right of access to the proceedings. The group included The Reporters Committee, The New York Times, The Washington Post, Gannett, Knight Ridder, ABC, CNN, and others.

Because of the extreme secrecy surrounding the case, it is unclear what, if any, proceedings remain to be completed in the lower courts. The government has released Bellahouel on $10,000 bond, though he reportedly is still ensnared in deportation proceedings.

(M.K.B. v. Warden, Media Counsel: Thomas C. Goldstein, Goldstein & Howe, Washington, D.C.) JM

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© 2004 The Reporters Committee for Freedom of the Press

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