Group Challenges Extraordinary Government Secrecy

People For the American Way Foundation (PFAWF), a national civil rights and constitutional liberties organization, and the firm of Arnold & Porter have filed suit against the U.S. Department of Justice (DOJ) seeking the release of redacted DOJ records relating to secret court proceedings against post-9-11 detainees.

PFAWF hopes that release of these records will help determine the extent to which the DOJ has taken the highly unusual step of trying to seal habeas corpus cases of detainees who challenge the legality of their detentions. Habeas corpus cases, used to determine whether or not a person is imprisoned lawfully, are traditionally open to public scrutiny.

“Issuing a gag order for a habeas corpus case sets a dangerous precedent, and so does this Administration’s alarming practice of denying legitimate Freedom of Information Act requests,” said Ralph G. Neas, president of PFAWF. “Excessive government secrecy puts all of our constitutional rights and liberties at risk.”

PFAWF’s inquiry was prompted by the case of Mohamed Kamel Bellahouel, one of hundreds of Middle Eastern men detained by DOJ after the 9-11 attacks. After being released without being charged with any terrorism related crimes, Bellahouel brought a habeas corpus case challenging the constitutionality of his detention. The government sought and obtained a secrecy order that sealed all filings, making even the existence of his case a secret. Bellahouel’s case, M.K.B v. Warden, only came to light due to a clerical error at the 11th U.S. Circuit Court of Appeals when the case was briefly listed on the public docket.

PFAWF submitted a Freedom of Information Act (FOIA) request in November 2003 asking the DOJ to release all records relating to post-9-11 detainees to uncover the extent of the DOJ’s use of gag orders in habeas corpus cases. Recognizing that DOJ records may contain sensitive information, PFAWF sought copies with such information redacted if necessary. The DOJ denied the request a month later, claiming that all of the documents were exempt from disclosure as a possible invasion of personal privacy even though such court filings are traditionally public records. PFAWF appealed in February 2004 and received yet another refusal from the DOJ five months later for the same reason.

“Excessive secrecy makes accountability impossible. People shouldn’t be able to disappear into detention without a trace,” said Elliot Mincberg, vice president and legal director at PFAWF. “Secret hearings in these types of cases are inconsistent with this nation’s centuries-old tradition of open government and transparent and fair judicial process.”