Taking Liberties: The War on Terror and the Erosion of American Democracy (37 page)

As described earlier, both Bush and Obama lawyers have often argued that key documents were too secret to be shared with plaintiffs’ attorneys or with a court. The result of concealing documents, with or without the court’s agreement, has been to leave some plaintiffs unable to pursue their cases, and others at a disadvantage in arguing against evidence they have not seen. And of course the “John Does” challenging the constitutionality of gag orders have had to comply with the gag orders throughout their litigation, adding another element of secrecy to complicate litigation and leaving the public in the dark. But the reductio ad absurdum of the government’s drive for secrecy has been insistence that certain cases not even be listed on the court’s docket. Beyond being asked to pretend that an individual document does not exist (as in the
Al-Haramain
case described in
chapter 10
), courts and litigants have been instructed to pretend that entire cases do not exist. We do not know how many cases have been thoroughly buried in the name of national security, for obvious reasons, but another clerical Internet error exposed one early post-9/11 example.

Mohamed Kamel Bellahouel, who had been a veterinarian in Algeria, came to the United States in 1996 to study biology at Florida Atlantic University. He and his wife, an American citizen, lived in Fort Lauderdale. When Mohamed ran out of money for tuition, he took a job as a waiter at a Middle Eastern restaurant in Boca Raton where, as it happened, several Al Qaeda hijackers had eaten a few weeks before the 9/11 attacks. The FBI thought it “likely” that Mohamed had served the hijackers their food. So in October 2001, Mohamed was arrested on a charge that he had failed to comply with the conditions of his 1996 student visa. He was then turned over to the FBI as a material witness. While he was in custody, he filed a habeas corpus petition asking the court to order his release. Five months later, after testifying before a grand jury, he was released on bond. He set out to change his immigration status, as someone married to an American citizen usually is able to do as a matter of routine.

While his case was pending, Mohamed and his lawyers at the Miami Federal Public Defender’s office were surprised to learn that the government was insisting that his habeas corpus petition be treated by the courts as an absolute secret. The case was not listed on the court’s docket; all court opinions were filed under seal; all courtrooms were closed to the public and press during argument.
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The court did not explain its reasons for acceding to this extraordinary level of secrecy. Although Mohamed was now free and so no longer needed the court to order his release, he insisted on filing an appeal in order to challenge the gag order burying his case. Mohamed’s lawyer, Paul Rashkind, shakes his head over the fact that, of all the people involved in this case, it was the noncitizen who cared passionately enough about the First Amendment to want to pursue this issue.

Due to a clerical error that left some information available on the Internet for a short time, Dan Christensen, a reporter for the
Miami Daily Business Review
, discovered the existence of the appeal and published an article about it,
³⁴
which was picked up by national news media. A
Christian Science Monitor
article began, “It’s the case that doesn’t exist.”
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Paul Rashkind could tell swarming reporters little about the case because of the gag order, which he still honors. In the Eleventh Circuit Court of Appeals, headquartered in Atlanta, Georgia, the argument about whether all this violated the public’s right of access to judicial proceedings, ironically, took place in secret. The court followed up by filing a secret opinion. The court’s decision was that all documents in the case should remain sealed. Rashkind asked the Supreme Court to review this decision, compliantly filing two versions of the petition under the cryptic name
M.K.B. v. Warden
: one a heavily censored public version (the first public document filed in the case) and the other a full version for the Court’s eyes only. The Reporters Committee for Freedom of the Press urged the Supreme Court to take the case, arguing that this extreme level of secrecy was a drastic departure from regular court procedures and unconstitutionally prevented the press from reporting on a matter of national interest:

[I]t is impossible to judge whether M.K.B. was legitimately detained, or whether he was the victim of racial or ethnic profiling. It is also impossible to evaluate whether the government has a valid reason for deporting a man who had lived and worked peacefully in the United States for six years prior to his detainment.
³⁶

The Supreme Court declined to hear the case.
³⁷
But shortly afterward, the case was listed on the lower court’s docket in a redacted form. The public was then able to see sixty-five uninformative docket entries like: “SEALED DOCUMENT, SEALED MOTION, SEALED ORDER, SEALED NOTICE OF SEALED HEARING, SEALED MINUTES OF HEARING, SEALED TRANSCRIPT OF HEARING, and SEALED NOTICE OF APPEAL.” No court order had led to the sealing of the record, evidently, and no court order led to its partial unsealing.

The closure of the
M.K.B.
case, like the web of secrecy surrounding some of the cases discussed earlier (the Library Connection case in
chapter 8
and the John Doe litigation in
chapter 9
), shows that another constitutional right endangered during the War on Terror decade was the public’s First Amendment right of access to judicial proceedings. This right is not only for the benefit of the litigants. Opening judicial proceedings to scrutiny by the press and public is one of the Constitution’s methods for preventing injustice and providing accountability to the “jury of the whole”—the general public.
³⁸
Countering this tradition of open court proceedings, in the fall of 2001, the government also began using the “mosaic theory” to urge the courts to exclude the public and press from deportation hearings in an entire group of cases designated as “special interest” cases.

Rabih Haddad, a well-known imam in Detroit, was included on the list of special interest cases—apparently because of his connection with the Global Relief Foundation, one of the Muslim charities blacklisted by President Bush. He was not charged with any crime; the government opportunistically decided to deport him for overstaying his visa. Because he was a public figure, a number of people became interested in his case, including Michigan Representative John Conyers, Jr., one of the most diligent of Congress’s watchdogs. (At a recent public event, Senator Richard Durbin quipped that “John Conyers is to justice as John Coltrane is to jazz.”) Conyers was highly skeptical of the notion that Rabih Haddad was financing Al Qaeda and wanted to attend the hearing to see what was going on. And so he joined the
Detroit Free Press
in challenging the constitutionality of closing the deportation proceeding.

Judge Nancy Edmunds asked the government what harm might be done if members of the public attended this hearing—given that any classified documents or testimony the government offered could be kept confidential even in a public hearing. The government’s lawyers responded that it might aid terrorists to know whom the government was targeting for deportation. Judge Edmunds didn’t understand how that argument applied to the case
of Rabih Haddad, who had already broadcast far and wide that the government was seeking to deport him—including to a Congressman and the press. Not getting any further explanation from the government lawyers about just how national security was threatened in this case, she ruled that this hearing, at least, should be open to the public.
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The Sixth Circuit Court of Appeals, which covers Michigan, agreed. In an opinion vindicating the First Amendment right of access to the courts, Judge Damon Keith majestically declared, “Democracies die behind closed doors.”
⁴⁰

Government lawyers saw a special need in terrorism-related cases to shut out the public; others, especially members of the press, saw a special need for the public to be able to observe what was happening, given the controversial nature of these proceedings and the possible implication of religious profiling. The Sixth Circuit respected the traditional presumption in favor of First Amendment rights instead of just deferring to the government’s all-encompassing national security claims:

The Government could use its “mosaic intelligence” argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The Government could operate in virtual secrecy in all matters dealing, even remotely with “national security,” resulting in a wholesale suspension of First Amendment rights.
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But other courts have been far more deferential to mosaic theory claims,
⁴²
including the Third Circuit Court of Appeals, which covers New Jersey, in a more general challenge to secret deportation hearings
⁴³
and the D.C. Circuit Court of Appeals in Freedom of Information Act litigation.
⁴⁴

The Eclipse of the Courts

The failure of the courts even to consider the constitutionality of so many post-9/11 programs is perhaps the most disturbing aspect of the stories I have recounted because the federal courts are supposed to be our constitutional safety net. Article III of the Constitution designed the federal judiciary to be independent of politics in order to protect us against too much democracy. Even if a majority of Americans are willing to barter the rights of Muslims—or freedom of speech, privacy, and even democracy itself—in exchange for a greater sense of safety, it is the job of life-tenured judges to keep us from selling our constitutional birthright for a mess of
pottage. Typically, courts do that by demanding that the government demonstrate that rights-compromising strategies really do serve a compelling need—like promoting our safety—and that there is no equally effective way to do what is needed without sacrificing rights. This was the approach of the Sixth Circuit in the
Detroit Free Press
case. It should have been the Supreme Court’s task in the
Humanitarian Law Project
case to judge independently whether the material support law dragnet actually promotes the compelling interest of keeping us safe and whether it is worth its cost in freedom of speech—not just to nod along with executive branch assurances. To be sure, this is a challenging job, since judges are also human beings who feel fear and, as many judges are the first to say, are not generally national security experts. But the job of a judge is to choose rationality over fear, and to learn enough from experts to make informed independent decisions—as judges do every day in all kinds of cases ranging from eye-crossing antitrust cases to scientifically sophisticated patent claims.

The Supreme Court rose to this challenge in the Guantánamo and enemy combatant cases—
Rasul v. Bush
,
Hamdi v. Rumsfeld
,
Hamdan v. Rumsfeld
, and
Boumediene v. Bush
. The Court listened to experts, exercised independent judgment, and preserved fundamental constitutional principles of due process and judicial review, all in the face of fervent executive branch claims that our safety depended on allowing the president to decide who is an enemy combatant without being second-guessed by the courts. But during the War on Terror decade, the Court bowed to a comparable argument in the
Humanitarian Law Project
case, one of only three cases about domestic antiterrorism strategies it has agreed to hear so far. The Court has distanced itself from other important constitutional claims, simply refusing to hear cases including:

•  the Third Circuit Court of Appeals case holding that it was permissible to exclude the public and the media from a whole category of deportation cases,
⁴⁵
even though that decision was in tension with the Sixth Circuit
Detroit Free Press
decision.
⁴⁶
(Ordinarily, the Court prioritizes resolving conflicts between Courts of Appeals.)

•  the ruling of the one-sided Foreign Intelligence Surveillance Court of Review that the expansion of FISA that later affected Brandon Mayfield was constitutional
⁴⁷

•  the
M.K.B.
“supersealing” case
⁴⁸

•  the D.C. Circuit’s broad endorsement of the “mosaic theory”
⁴⁹

•  the Second Circuit’s ruling that expansive use of the material
witness statute for arresting people who might have information about terrorism investigations is permissible
⁵⁰

•  the Sixth Circuit’s ruling that the lawyers and journalists who wanted to challenge the illegal NSA spying program, before Congress had laundered it, lacked standing
⁵¹

•  Roya Rahmani’s appeal from the Ninth Circuit decision prohibiting her from challenging the “foreign terrorist” designation of the Iranian pro-democracy group she supported
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•  Brandon Mayfield’s appeal from the Ninth Circuit decision dismissing his challenge to the FISA provisions under which he was searched as an “agent of a foreign power”
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