The Court has asked the SG to file a response to the Petition: see http://www.washingtonpost.com/wp-dyn/articles/A64104-2003Nov4.html
----- Original Message ----- From: "Eugene Volokh" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Sunday, November 02, 2003 4:25 PM Subject: Recommended: "Secret 9/11 case before high court" > _________________________________________________________________________ > [EMAIL PROTECTED] has recommended this article from > 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 > > > > Sign up for the Monitor Treeless Edition! > http://www.csmonitortreeless.com?dmc=E35W191 > _________________________________________________________________________ > > Click here to email this story to a friend: > http://www.csmonitor.com/cgi-bin/send-story?2003/1030/p01s02-usju.txt > > Click here to read this story online: > http://www.csmonitor.com/2003/1030/p01s02-usju.html > > 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. > > Click here to email this story to a friend: > http://www.csmonitor.com/cgi-bin/send-story?2003/1030/p01s02-usju.txt > > The Christian Science Monitor-- an independent daily newspaper providing context and clarity on national and international news, peoples and cultures, and social trends. Online at http://www.csmonitor.com > > Click here to order a free sample copy of the print edition of the Monitor: > http://www.csmonitor.com/aboutus/sample_issue.html > > _________________________________________________________________________ > > -- ADVERTISEMENT -- > > Sign up for the Monitor News Alert to be notified of special war coverage. > http://www.csmonitor.com/email
