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.