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
>
>
>
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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.
>
>
>
>
>
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>
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