Secret 9/11 case before high court
The justices consider a petition for a case with no public record.
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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.Skip to next paragraph
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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 Guantánamo 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.
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.