Secret 9/11 case before high court

By Warren Richey

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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