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Secret 9/11 case before high court

The justices consider a petition for a case with no public record.

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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."

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