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.]

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11 Responses to The Secret Attack on the Right to an Open Court

  1. Adam says:

    Here is the Supreme Court Docket for the case –
    Hopefully, we will know more about this after the Nov. 7th conference.

  2. Taint says:

    I don’t think there was a trial. Read the petition for cert.

    He was not a defendant. This appears to be an appeal from a petition for habeas of someone detained by the INS, and the petition details what was up at the hearing. (Moreoever, we have already seen what sort of secrecy can be imposed on an Immigration hearing).

    So, to say that a secret trial was conduct is just wrong and misleads people.


  4. Michael says:

    It was a full trial in the sense that the district court heard the habeas motion and decided it in secret. That’s a bench trial on the merits. You are right in the sense that it’s not a criminal trial, but the disposition of a matter by a court is a trial in my book.

    I am quite dubious about the secrecy in Immigration hearings. But the case seems very clearly bad in the case of anciallary proceedings in the District Court. (And in this case, made worse by the lack of formal findings justifying it.)

    Imagine this principle applied to Hamadi or Padilla facts: people just vanish into the system.

  5. Taint says:

    We are all dubious about secrecy, and we are all scared and angry about “enemy combatant” designations, but we have to be rigorous about what actually happened. In my opinion, not only is the administration trying to guess where the constitutional boundaries actually lie (like this isn’t too hard to know in advance) but is trying to gain points with some people by making things seem worse than they actually are.

    As to a trail. Look on p. 20 of the redacted petition for cert.: “The district court did not conduct an evidentiary hearing.” So, at best, the only things that the District Court kept secret were oral arguments on the habeas petition. The court did not hear witnesses, or anything resembling a trial. Appeals are not trials, and arguments on motions are also not trials. In fact, most habeas decisions are made without even oral argument!

    Hamdi and Padilla are represented by counsel, and it is hard to say that they “vanished” into the system. Moreover, the people involved in doing this are being advised by lawyers and really think what they are doing is constitutional. In a way it is frightening: likely a few of those lawyers went to your law school, maybe they were your students, maybe they used to work with me, and maybe they belong to the same bar associations as I do! I wonder how many people in the DOJ could really keep it secret that they were kidnapping Americans and holding (or killing) them indefinitely (without any access to lawyers, ever) without trial when there are just so many lawyers that need to be intellectually convinced of the constitutionality of the government’s actions.

  6. Michael says:

    1. As to the hearing issue. I read the petition to say that that the court did not conduct a fact-finding hearing on the issue whether to close the proceedings. (See pp. 17 & 20 and especially 23-24 of the cert petition.) I read the petition to have redacted almost everthing relating to the actual conduct of the hearing on the merits. So, as I read it, the petition does not tell us how the habeas petition was tried.

    Incidentally, the underlying event that gave rise to the petition may have been a material witness warrant, not an INS matter, see pp. 17-18 of the cert petition.

    2. As to the nightmare scenario. Yes, Hamdi and Padilla have lawyers. Sort of. In fact the government won’t let the client meet with counsel (and in the Padilla case the government argued that a habeas petition required the client’s signtature to be valid. And the client is in solitary confinement, and no papers may be sent to him. Catch 22.) If the government can pick you up off the street and hold you indefinately without trial in the brig, it’s perfectly capable of saying that your right to counsel only attaches when they actually charge you with something. (The issue of right to counsel while detained was left open by the 4th circuit in its Hamdi decision.) And they will arraign you (if they even bother) in a secret trial with no PD’s hanging around who might bump into you.

    In fact, Hamdi hasn’t been charged with anything. If the government gets its way in the Hamdi and Padilla cases, and in this one, the conditions will exist to make it possible for the government to arrange matters so that the next guys will not have lawyers until charged, and they may never be charged. Meanwhile, no one on the outside need even know that they are being held.

  7. Jim says:

    A habeas corpus proceeding is not a trial. There may be evidentiary hearing associated with a habeas petition, but not a trial and no jury. I fail to see the reason for concern.

  8. Sealing anything, even documents filed with the court is a big deal. Closing off a hearing similarly a big deal. But an entire proceeding, whatever its quality, behind closed doors is ridiculous.

    The government’s secrecy policy is ridiculous and has been called into question by courts and legislators (most recently the 9-11 panel chastised the Bush administration for being slow to turn over documents, DOJ unveiled its use of Section 215, with no explanation for why such results should have been kept secret in the first place).

    The issue of what actually took place in this proceeding is a little besides the point.

  9. Thomas says:

    “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.”

    But the CSM article excerpt says “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.”

    IOW, this isn’t an innovation, and using it in drug cases wouldn’t be an extension.


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