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Published: Friday, 1/9/2004

Gagging the legal system

Imagine a criminal case in which the arrest, detention, charges, hearing, judge s ruling, appeal, and outcome are all conducted in secret, with no mention of any of the proceedings on the public record.

Most Americans likely would believe that such draconian subversion of the legal system would be possible only under Soviet-style communism, or some sort of banana republic dictatorship. Unfortunately, it happened in a federal court in south Florida, right here in the good old U.S. of A.

We re learning - largely by happenstance - that so-called “supersealed” cases are becoming increasingly prevalent in the federal court system as judges suspend disbelief and give prosecutors expanded powers under the guise of national security and an impenetrable blanket of secrecy.

The case in question involves an Algerian-born man named Mohamed Kamel Bellahouel, who was among more than 1,000 Arabs arrested and jailed in a government dragnet following the 9/11 attacks.

Mr. Bellahouel s “offense”? As a waiter at a Delray, Fla., restaurant, he supposedly served a meal to two of the 9/11 hijackers. He was held for five months, during which time he was taken to Alexandria, Va., to testify before the grand jury investigating the so-called “20th hijacker,” Zacarias Moussaoui.

Apparently no longer a public threat, Mr. Bellahouel has been free on $10,000 bond since March, 2002, facing an immigration charge of overstaying his visa. His wife is an American citizen.

The little that is known about the Bellahouel case comes from his appeal to the U.S. Supreme Court, which is heavily censored.

We wouldn t know anything, however, were it not for the digging of the Miami Daily Business Review, whose reporter discovered mention of it and a similarly secret narcotics case inadvertently left on the public record by federal court clerks who were directed to hide them.

“In both cases,” the reporter wrote, “the public court docket and court record contained no party names, no facts, no judge, no attorneys, and no documents that were publicly accessible. Even the case numbers were confidential. And for the one party who objected, he and his attorney were placed under gag orders.”

The judge who sealed the Bellahouel case and ordered it kept off the public docket did so without issuing a secrecy order, which is normal federal procedure. The 11th Circuit Court of Appeals in Atlanta upheld the judge s actions, but it too failed to issue a formal on-the-record order.

Such overweening secrecy, without the safeguard of public oversight, makes a kafkaesque mockery of the rights guaranteed in the U.S. Constitution.

Some legal experts say that, in the wake of 9/11 and the war on terrorism, Americans can no longer count on the civil liberties they once held inalienable.

If that is the case, what are we fighting for? What, other than rhetoric, will separate this nation and its historic tradition of due process from the world s totalitarian regimes?

Not much, we fear. Not much.



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