Supreme Court asks for more input on secret Sept. 11 case

Before deciding whether to take the case, the justices request that the Bush administration defend its secrecy.

A US Supreme Court request for the government to justify the total secrecy imposed in a Sept. 11 case from Miami is raising questions about how far that secrecy may extend into the high court's own operations.

The US solicitor general has been asked to file a legal brief on the secrecy issue by Dec. 3. It is unclear to what extent this brief will break the government's public silence about the case.

The Justice Department may seek to designate its entire brief as a classified document, legal analysts say. Or government lawyers may follow the lead of the petitioner in the Miami case and file one set of documents for the court, under seal, and another set of redacted documents for members of the press and public, they say.

However the Justice Department responds, the case poses a Catch-22 for government lawyers, given their insistence that disclosure of even relatively minor bits of information - indeed just confirmation that a case exists at all - could harm US national security.

It is a position rejected by government-secrecy watchdog groups. "They haven't made a careful effort to distinguish between what might be genuinely sensitive and everything else," says Steven Aftergood of the Project on Government Secrecy of the Federation of American Scientists. "If we want trials like that, we can go to Cuba or North Korea."

The case, MKB v. Warden, arrived at the US Supreme Court in June. At issue is whether a federal judge and federal appeals-court panel abused their discretion when they granted a government request to seal an entire case challenging the detention of an Algerian waiter in south Florida after Sept. 11. Not only were all proceedings conducted in closed session, but all documents were ordered sealed, and docketing clerks were instructed to maintain case files under a secret filing system. In essence, there was no public indication that the litigation even existed.

The existence of the case was first disclosed by a news reporter, Dan Christensen of the Daily Business Review of Miami, after a docketing clerk mistakenly included information about the secret case on the public docket. Despite press reports by Mr. Christensen and others, the Justice Department has yet to publicly acknowledge the existence of the case.

The votes of at least four Supreme Court justices are required to take up a case. They were scheduled to consider the case in their conference Friday. But that was postponed to give the solicitor general time to file a brief. Under court rules, the government may make requests that could extend their deadline until early February.

Analysts say it is not clear whether the request for a brief from the solicitor general is an indication of concern within the more liberal wing of the court about excessive government secrecy or an attempt by more conservative justices to obtain solid grounds to deny review.

"I think the court primarily asked for the solicitor general's submission to reassure them [the justices] that this is about a particular case in a particular context and that nobody is overreaching here," says David Rivkin, a Washington lawyer who served in the Reagan Justice Department and in the White House counsel's office in the first Bush administration.

He adds that the justices may find an extra reason to avoid the case. "It is not only a question of deference to the government [in national security matters]. It is the Supreme Court also deferring to the lower court," Mr. Rivkin says. "It is almost a double deference here."

Lucy Dalglish of the Reporters Committee for Freedom of the Press views the action differently. "It should be taken as warning to the Justice Department that the justices are not going to let them get away with [sealing cases] wholesale," she says. "I like to think they are as appalled as I am, but it is clearly on their radar."

Ms. Dalglish has filed a friend-of-the-court brief urging the justices to hear the case. She writes, "This case is perhaps the most egregious recent example of an alarming trend toward excessive secrecy in the federal courts."

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