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Monday, February 23, 2004 · Last updated 7:26 a.m. PT

Court won't hear 9/11 secrecy challenges


WASHINGTON -- The Supreme court said Monday it will not hear a challenge to government secrecy in the case of a former waiter who may have served some of the Sept. 11 hijackers.

The court did not comment in turning down an appeal over public and media access to sealed court documents in the case, which has been prosecuted in near total secrecy.

Lawyers for Mohamed Kamel Bellahouel asked the justices to consider whether lower federal courts acted improperly in keeping the government's case against their client so secret that its mere existence was revealed only by accident.

"In an extraordinary set of secret cases, the courts below sealed an entire habeas corpus proceeding and appeal," including every court filing and ruling, with no public order giving any reason for the secrecy and without making any distinction between information that should be public and that which might justifiably be secret, the lawyers wrote.

"This petition raises the common law and First Amendment rights of the public and the news media, who are oblivious to the proceedings below and cannot be heard themselves," Bellahouel's lawyers wrote.

Bellahouel was one of hundreds of foreigners rounded up after the hijackings in 2001. The government has refused to release names and information about the detentions, arguing that a blanket secrecy policy is needed to protect national security.

Bellahouel, an Algerian who worked as a waiter in South Florida, came under FBI scrutiny because Sept. 11 hijackers Mohamed Atta and Marwan al Shehhi dined where he worked in the weeks before the attacks.

It is not clear whether Bellahouel knows anything about the hijackers or their plans, but he was never charged with any terrorism crime.

The case does not concern Bellahouel's actual treatment at the hands of the government, which arrested and detained him on immigration violation charges, but ultimately released him on $10,000 bond.

Bellahouel, identified in court documents only by his initials M.K.B., is married to an American and is trying to stay in the United States. His lawyers describe him as one of "countless innocent Middle Eastern men" secretly detained after the attacks.

Large sections of his Supreme Court filing were edited out before the document was released publicly at the court, but some blank sections apparently deal with Bellahouel's interrogation by the FBI and his reported testimony before a federal grand jury in Alexandria, Va.

Bellahouel's name and some details of his case were first reported by a Miami newspaper, the Daily Business Review. The newspaper learned of the case because of a clerical error at the 11th U.S. Circuit Court of Appeals. The case was briefly listed on the court's public docket, but then removed.

The Bush administration replied to Bellahouel's appeal at the Supreme Court, but the filing is secret. The administration has argued in other cases that national security justifies the policy of blanket secrecy in post-Sept. 11 immigration cases. Release of information such as names and details of those arrested could help terrorists track the progress of the U.S. investigation, the government has said.

The Supreme Court rejected an appeal last year from newspapers that sought information about similar detentions.

The case is M.K.B. v. Warden, 03-6747.


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