For what it is worth, there is a long tradition, both in England and the
United States, of individual judges conducting habeas proceedings in
chambers. Siginficantly, however, the point was not secrecy, but instead
to be sure that the writ was available even in vacation. Indeed, one of
the celebrated provisions of the Habeas Corpus Act, the "second magna
carta," was precisely to be sure that during those times outside of a
court's term, individual judges at chambers would issue the writ.
The distinction between term time and vacation has largely been lost in the
federal courts, even at the Supreme Court, which now does not adjourn the
prior term until immediately before commencing the new term. Until fairly
recently, though, it would formally end its term at the beginning of summer
and not convene the next term until October, so that in the rare cases it
would hold a "special term."
Under its current approach, it did not adjourn the October 2002 term back
in June, but instead took "a recess from Friday, June 27, 2003, until
Monday, September 8, 2003, at 10 o'clock.." It did not need to hold a
special term for the campaign finance cases but instead heard argument on
those cases during the October 2002 Term on September 8, 2003, when the
Chief Justice said:
"Today we will break for lunch and reconvene at 1:30 and the Court
will be in recess from today until the first Monday in October 2003, at
which time the October 2002 Term of the Court will be adjourned and
the October 2003 Term of the Court will begin as provided by statute."
In days past, however, courts at all levels would be out of session between
terms for months at a time, making the power of individual judges to issue
habeas in chambers quite important. In fact, the habeas petition issued
by Chief Justice Taney for John Merryman -- the one that Lincoln defied --
was issued by Taney in his individual capacity at chambers, although he
made it returnable before him in a Maryland courtroom rather than at his
chambers in order not to draw the commanding officer away from his field of
action.
Ed Hartnett
Seton Hall
Eugene Volokh
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LA.EDU> cc:
Sent by: Discussion Subject: Recommended: "Secret 9/11
case before high court"
list for con law
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11/02/03 04:25 PM
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con law professors
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The Christian Science Monitor's electronic edition.
Any thoughts on the case discussed here? I take it one issue is whether
habeas proceedings may be held in camera. As I understand it, under the
Public Trial Clause, trials must be open, with no exceptions (though
perhaps some evidence in a trial may be taken in camera) -- am I correct on
that? Would that extend to habeas as well? I'd love to hear what people
who are up on their Public Trial Clause / habeas jurisprudence think about
this. (The one corner of this that I know myself is the First Amendment
right of access, but I suspect that it probably wouldn't apply here, though
that's not open and shut.) Thanks,
Eugene
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Headline: Secret 9/11 case before high court
Byline: Warren Richey Staff writer of The Christian Science Monitor
Date: 10/30/2003
(MIAMI)It's the case that doesn't exist. Even though two different federal
courts have conducted hearings and issued rulings, there has been no
public record of any action. No documents are available. No files. No
lawyer is allowed to speak about it. Period.
Yet this seemingly phantom case does exist - and is now headed to the
US Supreme Court in what could produce a significant test of a question
as old as the Star Chamber, abolished in 17th-century England: How far
should a policy of total secrecy extend into a system of justice?
Secrecy has been a key Bush administration weapon in the war on
terrorism. Attorney General John Ashcroft warns that mere tidbits of
information that seem innocuous about the massive Sept. 11
investigation could help Al Qaeda carry out new attacks.
Yet this highly unusual petition to the high court arising from a Miami
case brings into sharp focus the tension between America's long
tradition of open courts and the need for security in times of national
peril. At issue is whether certain cases may be conducted entirely
behind closed doors under a secret arrangement among prosecutors,
judges, and docket clerks.
While secret trial tactics have reportedly been used by federal
prosecutors to shield cooperating drug dealers, it's unclear whether
the high court has ever directly confronted the issue. But that may
change if they take up MKB v. Warden (No. 03-6747).
What's known about the case
This is among the first of the post-Sept. 11 terrorism cases to wend
its way to the nation's highest tribunal. There was no public record of
its existence, however, until the appeal was filed with the clerk of
the US Supreme Court.
A federal judge and a three-judge federal appeals-court panel have
conducted hearings and issued rulings. Yet lawyers and court personnel
have been ordered to remain silent.
"The entire dockets for this case and appeal, every entry on them, are
maintained privately, under seal, unavailable to the public," says a
partially censored 27-page petition asking the high court to hear the
case. "In the court of appeals, not just the filed documents and docket
sheet are sealed from public view, but also hidden is the essential
fact that a legal proceeding exists."
Despite the heavy secrecy, a brief docketing error led to a newspaper
report identifying MKB by name in March. The report said MKB is an
Algerian waiter in south Florida who was detained by immigration
authorities and questioned by the FBI.
MKB's legal status remains unclear, but it appears unlikely from court
documents that he is connected in any way to terrorism. He has been
free since March 2002 on a $10,000 bond.
The case is significant because it could force a close examination of
secret tactics that are apparently becoming increasingly common under
Attorney General Ashcroft. In September 2001, he ordered that all
deportation hearings with links to the Sept. 11 investigation be
conducted secretly. In addition, the Justice Department has
acknowledged that at least nine criminal cases related to the Sept. 11
investigation were being cloaked in total secrecy.
MKB v. Warden is the first indication that the Justice Department is
extending its total secrecy policy to proceedings in federal courts
dealing with habeas corpus - that is, an individual's right to force
the government to justify his or her detention.
The case offers the Supreme Court an opportunity for the first time to
spell out whether such secret judicial proceedings violate
constitutional protections. It may also offer the first insight into
how much deference a majority of justices is willing to grant the
government in areas where the war on terrorism may tread upon
fundamental American freedoms.
>From the perspective of news reporters and government watchdogs, the
case marks a potential turning point away from a long-held presumption
that judicial proceedings in the US are open to public scrutiny.
The case is one of several currently on petition to the high court
dealing with some aspect of the war on terror. Two cases relate to
detainees at Guantanamo Bay, Cuba, and one challenges Yasser Hamdi's
open-ended detention as an enemy combatant. A fourth case seeks to
force the Justice Department to disclose the names of detainees caught
up in antiterror investigations - an issue closely related to the Miami
habeas case.
Federal judges have the authority to order sensitive documents or even
entire hearings sealed from public view when disclosure might harm
national security. Such rulings are usually issued after the judge has
explained the need for secrecy in a decision available to the public.
In addition, judges can order that an individual be identified in
public court filings only by a pseudonym or by initials, as happened
when the MKB case arrived at the US Supreme Court.
What is highly unusual in MKB v. Warden is that lower court judges
ordered the entire case sealed from the start - preventing any mention
of it to the public.
'Abuse of discretion'?
In her petition to the court, Miami federal public defender Kathleen
Williams says the judges' actions authorizing the secrecy without any
public notice, public hearings, or public findings amount to "an abuse
of discretion" that requires corrective action by the justices.
"This habeas corpus case has been heard, appealed, and decided in
complete secrecy," Ms. Williams says in her petition.
A government response to the petition is due Nov. 5. It will mark the
first time the Justice Department has publicly acknowledged the
existence of the habeas corpus action. The justices are set to consider
the case during their Nov. 7 conference.
Justice Department officials have defended the blanket secrecy policy,
saying that public hearings and public dockets would undermine efforts
to recruit detainees as undercover operatives to infiltrate Al Qaeda
cells in the US. According to press reports, similar secret trial
tactics have been used by federal prosecutors to shield cooperating
drug dealers from mention in public court documents that might blow
their cover and end their use as operatives in ongoing undercover
narcotics sting operations.
(c) Copyright 2003 The Christian Science Monitor. All rights reserved.
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