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Secret 9/11 case before high court

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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 case is significant because it could force a close examination of secret tactics that are apparently becoming increasingly common under Attorney General Ashcroft. In September 2001, he ordered that all deportation hearings with links to the Sept. 11 investigation be conducted secretly. In addition, 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.

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.

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