Secret 9-11 case surfaces

July 1, 1993

You haven’t heard about it because the media haven’t told you. Even though two federal courts have had hearings and issued rulings, no public record exists. Yes, supposedly, no files and documents exist for the lower court proceedings. Even the lawyers are barred from speaking about MKB vs. Warden.

However, the case does exist, and it is headed for the U.S. Supreme Court, according to The Christian Science Monitor. The issue to be decided is how far total secrecy can extend into the judicial system.

The case deals with the attacks of 9-11. Secrecy has been a hallmark of the Bush administration, as it is with all totalitarian regimes. Attorney General John Ashcroft promotes the old and tired line that innocuous tidbits about the 9-11 investigation could aid al-Qaeda in launching new attacks.

This petition to the high court devolves from a Miami case, MKB vs. Warden. It centers on and sharply focuses the conflict between America’s long tradition of open courts and the need for security in times of national danger.

The issue is whether certain cases may be conducted completely in secret by arrangement among prosecutors, judges and docket clerks.

Secrecy has been employed by federal prosecutors in some drug cases to shield informants, but it is unclear whether the high court has ever dealt with the issue directly.

Although this case is among the first of the post 9-11 terrorist cases to reach the high tribunal, there was no public record of it until the appeal was filed with the clerk of the Supreme Court.

A 27-page petition to the court states: “The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public. 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 all this, bits of information about the case leaked out. Last March, there was a newspaper report identifying MKB as an Algerian waiter in south Florida who was detained by immigration authorities and questioned by the FBI.

Court documents that have been viewed indicate he is not likely connected to any terrorist group. MKB has been free on $10,000 bond since March 2002.

This case is significant because it may force a close scrutiny of secret tactics becoming more and more common under the direction of Attorney General Ashcroft.

In September 2001, he ordered all deportation hearings linked to the 9-11 investigation be conducted in secret. Additionally, the Justice Department admitted at least nine criminal cases tied to the probe were being maintained in total secrecy.

MKB vs. Warren provides the first indication that the Justice Department is extending this secrecy policy to federal court proceedings involving habeas corpus; an individual’s right to make the government justify that person’s detention.

It will provide the high court with its first opportunity to say whether such tactics are constitutional. It also may reveal how far a majority of the justices are willing to let the government go in areas where the “war on terror” may collide with basic American freedoms.

Federal judges hold the power to order sensitive documents or entire hearings sealed from public view whenever disclosure might damage national security. Such rulings generally are issued after the judge has explained the need for secrecy in a decision made available to the public.

MKB vs. Warren is unusual in that lower court judges ordered the entire case sealed from the start.

Kathleen Williams, Miami federal public defender, in her petition to the high court, notes the lack of public notice, hearings or findings.

“This habeas corpus case has been heard, appealed, and decided in complete secrecy,” Williams said. She charges such action amounts to “an abuse of discretion” by the lower courts and calls for corrective action by the justices.

The government was to respond the first week of November, and justices were to consider the case at their Nov. 7 conference.

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