Mukasey And Material Witnesses

Within days of the September 11 strikes, Mukasey announced that court hearings in all of the material-witness cases would be closed to the press and the public on the grounds that they were connected to a grand jury probe. (Grand juries, by law and tradition, usually carry out their business in secret.) The transcripts, dockets, and court orders in the material-witness cases remain sealed. Last fall Mukasey's secretary told The Washington Post that Mukasey wanted the cases kept secret "forever." ... What makes this virtual information blackout particularly galling is that it's far from clear that the law requires the strict secrecy Mukasey has imposed. Material witnesses arrested early on in the Oklahoma City bombing investigation were brought to hearings in open court, and the reasons for their detention were set forth publicly. No harm to the inquiry seems to have resulted. And federal courts in Washington, Texas, and Washington, D.C., have all held open hearings about material witnesses sought for grand jury probes. The dockets of those cases are also public for all to see. And the benefits of public court proceedings are more than abstract. Late last year Abdallah Higazy was secretly jailed as a material witness after an aircraft radio was allegedly found in a hotel room he occupied near the World Trade Center on September 11. After one month another hotel guest came forward to say the radio was his; Higazy was released soon thereafter. Had Higazy's arrest been publicized when it occurred, as is typical in criminal cases, the true owner of the radio might have come forward sooner. And Higazy could have been spared four weeks in jail.