The Secret Attack on the Right to an Open Court

The Christian Science Monitor reports that the Supreme Court will soon consider whether to review a lower court procedure that allowed the government to conduct a secret habeas corpus proceeding. Not only was the trial closed to the public, but all information about it was kept off the public record. Officially, it was a non-event.

A secret trial. A SECRET TRIAL. In the US. IN THE USA. Ok. Ok. I refuse to panic until the Supreme Court approves this. That means I have a few weeks at least.

If you had asked me two years ago, I would have said that secret trials were impossible in the USA. While there are special procedures for judges to consider especially sensitive evidence in camera these have historically been designed as a way of deciding whether the evidence belongs in open court; if the judges decide the evidence is important, the government must either make it public, or forgo using it — which, if the evidence is exculpatory, means forgoing the prosecution.

The idea that the government would attempt to hold entire secret star chamber-like trials, closed to the public, trials whose very existence was a secret, is repugnant to this nations's traditions and fundamental values. And if history teaches us anything about abuses of power, it is that secret trials are dangerous. This is never more true than in a habeas corpus action, the 'Great Writ' (the “highest safeguard of liberty,” Smith v. Bennett, 365 U.S. 708, 712 (1961)) which is designed to force the government to justify its detention of a person.

The government's — successful! — attempt to inaugurate a regime of secret trials and secret detentions is a really lousy signal about the state of panic among our ruling class — and about the brittle state of our liberties. What really boggles the mind is that two courts have allowed this to happen — now only the Supreme Court stands between us and a country with secret trials into which suspects (recall – they're innocent until proven guilty!) just vanish into the system.

Before you say 'terrorism is different' or 'we're at war now', note that the government says they want to use this tactic in drug cases too. Worry. Really worry about this one. We're one step closer to the day when this might not be a joke.

And in fact, the subject of this secret trial isn't some super-ninja terrorist from beyond the deep. He's an Algerian waiter. And he is obviously not that dangerous, since he's been out on a $10,000 bond since March 2002.

Secret 9/11 case before high court| By Warren Richey | Staff writer of The Christian Science Monitor

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?

…

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 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.

…

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.

…

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.

Until I heard about this, I would have said that the Padilla case was the most important civil liberties case alive today. But of course, I hadn't heard of MKB's case, had I? Now I guess it's a draw.

If the Supreme Court does not rule this unconstitutional, we must demand that Congress ban the practice of secret trials at once. Not because a reign of tyranny is certain to follow. But because one of the important protections which makes that idea seem laughable will have been pulled away.

[Accidentally posted originally with the wrong title. Title corrected.]