February 23, 2004
Supreme Court Refuses To Hear Secret Case
In an astounding decision the U.S. Supreme Court has decided not to hear the “secret case.”
The Supreme Court’s decision means it is okay for a federal appellate court’s published calendar to be obliterated to omit the names of litigants; a federal appellate court’s computer records to be altered to remove from public view any information about the case; a federal appellate court to close its courtroom to the public and the press to hear arguments in a case; and for litigants to be prohibited from talking about it.
I didn’t think this could happen in America.
The Associated Press via the Washington Post reports that the Supreme Court has decided not to hear the "secret case."
In the "secret case," M.K.B. v. Warden, 03-6747, the Supreme Court was asked to consider whether two federal courts acted improperly in keeping a case so secret that its mere existence was revealed only by accident.
The "secret case" concerned an Algerian who worked as a waiter in South Florida and came under FBI scrutiny because September 11 hijackers Mohamed Atta and Marwan al Shehhi dined where he worked in the weeks before the attacks.
In this unprecedented case, two federal courts sealed an entire proceeding and appeal, including every court filing and ruling, with no public order giving any reason for the secrecy and without making any distinction between information that should be public and that which might justifiably be secret.
You can read what is known about the secret case here.
The Supreme Court made no comment in deciding not to hear the "secret case." The Court's decision is available here, at page 23.
Posted by Dan Spencer at February 23, 2004 01:36 PMThis is an issue, which arguably has civil liberties at stake, but also derives from the powers delegated by the Congress to the office of President. The Court, in a narrow view of this case, would only be able to determine if the Executive is functioning within the paramters granted directly or indirectly by the Congress. There seems to be no dispute between these two branches, therefore, in the narrow view of the case, there is nothing to review.
I will read the links for information regarding the civil liberties issue. This is a timely and important issue, Dan. Thanks.
David, The most disturbing aspect of this case is that not only have all of the lower courts’ proceedings been held in secret, but that the lower courts concealed even the very existence of the case.
While it is not unusual for court records to be sealed, it is unheard of that even the existence of a case is kept secret. It is even a greater concern that none of the usual procedures for sealing court records were used. Instead, the lower courts tried to act entirely in secret.
Posted by: Dan Spencer at February 23, 2004 05:14 PMI understand, Dan. Congress granted Bush broad discretion under the Patriot Act and subsequent excecutive orders in the light of 9/11 to define what should be classified. The courts have nothing to act upon nor defense in disclosing proceedings brought before them by the Administation which has deemed such proceedings secret. Unless and until the Congress challenges abuse of power, or citizen’s challenge their loss of liberty, the court has no defensible reason to intervene, nor to controvert the administration’s declaration of secret proceedings. The Congress granted that power to the Executive Branch with the Patriot Act and the war powers resolution to attack terrorists by whatever means, wherever, and whenever the Executive deems appropriate for national security.
Why do you think so many of us have been screaming at the top of our writing finger tips the dangers to civil liberties of the Patriot Acts. How can any innocent victim of the Patriot Act ever prove they were a victim of abuse of the law, if their proceedings are kept secret? The road to fascism and authoritarian regimes have been paved with just such measures.
Posted by: David R. Remer at February 23, 2004 06:05 PMIsn’t this in the wrong column? I mean what do you expect with the court appointments this administration has made.
Posted by: Joe Taylor at February 28, 2004 11:53 AM
