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? …
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.
Make sure you stay informed on the workings of this case, MKB v. Warden. Our civil liberties are at stake here.