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 GuantE1namo 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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