The US Supreme Court has given a green light for the government to conduct certain federal court cases in total secrecy.
In a case with major implications for public access to the courts, as well as the war on terror, the nation's highest court said Monday it will not examine the circumstances surrounding a habeas corpus appeal filed by an Arab immigrant challenging his detention during the post-9/11 investigation. The proceedings were conducted under a government secrecy request upheld by federal judges.
The Bush administration considers the issue so sensitive that its brief to the high court was filed under seal. The government took that unusual action even though the individual at the center of the case - an Algerian living in South Florida - has been free on a $10,000 bond for two years.
The case, M.K.B. v. Warden, was being closely followed by legal experts because it asked the high court to spell out whether there is a constitutional requirement that judicial proceedings in the federal courts be conducted in public - or at least noted somewhere on the public record.
Administration officials say that public records and open court hearings involving terror suspects could provide Al Qaeda a road map of US counterterror efforts.
Critics of this approach say the government has the ability to seal certain portions of court hearings for security reasons, but that it is a dangerous practice to allow the government to conduct certain cases in total secrecy. "We are moving toward an entire system of secret justice," says Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press.
Despite its decision not to hear the secret trial case, the Supreme Court has already positioned itself at the center of the national debate over civil liberties and other implications of the war on terror. Last Friday, the high court agreed to take up a potential landmark case involving the indefinite detention of alleged nuclear "dirty bomber" Jose Padilla.
At issue in that case is whether President Bush has the power to order an American citizen who has been arrested on American soil to be held indefinitely without charge or access to a lawyer because he has been designated by the president to be an enemy combatant.
To resolve that case, the justices must examine the scope of presidential power in times of national emergency.
In addition, the court has agreed to decide two other major terrorism cases. One deals with the indefinite detention of Yaser Hamdi, a US-born Saudi, who was captured in Afghanistan and is being held in a Virginia military prison as an enemy combatant. The other deals with the detention of more than 600 Al Qaeda and other prisoners being held as enemy combatants at the US naval base at Guantãnamo Bay.
The three terrorism cases are expected to be argued at the high court in April.
The secret trial case that the court refused to consider involved the circumstances surrounding a habeas corpus appeal filed by Mohamed K. Bellahouel. Mr. Bellahouel, who is married to a US citizen, was detained for allegedly overstaying his visa. His detention was extended to permit the FBI to conduct an investigation of him and then question him about alleged links to two of the 9/11 hijackers.
The case appears to be an effort by the Bush administration to extend to the federal courts its policy of conducting immigration hearings dealing with potential terrorism suspects in total secrecy.
The M.K.B. case began as an immigration matter and then moved to federal court as an appeal of that process. In declining to hear the case, the justices have set the stage for the government to use the same secrecy rules that now apply in certain immigration hearings to cases at the district, appeals court, and even US Supreme Court levels.
In addition to keeping Al Qaeda in the dark about the scope of US counterterrorism efforts, the secret-trial policy helps government agents more easily recruit cooperating witnesses. When there is no public record that a particular individual entered the legal system, if that individual at some point agrees to become a government informant or undercover operative the secrecy rules would help maintain that person's cover once released into the community.
The Supreme Court has ruled in the past that the public enjoys a right to access certain judicial proceedings. But what is unique about M.K.B. v. Warden is that the entire case - including the fact that it existed at all - was kept secret. In effect, the government, judges, and lawyers agreed to keep the matter secret, including maintaining a private docket system accessible only to those authorized.
The existence of the case was revealed by an alert reporter at the Daily Business Review of Miami after a brief docketing error by an appeals court clerk. But for the error, the press and public may never have learned of the case.