Forget the fight to allow cameras in federal courtrooms. In this post-9/11 world, the battle for open judicial proceedings is being fought over whether the public is allowed to know certain cases exist at all.

Case in point: a petition currently pending at the U.S. Supreme Court known to the public only as M.K.B. v. Warden, No. 03-6747. The petitioner is known by his initials alone, and the High Court’s docket reflects neither what court decided the case below nor when that decision was issued – two facts that routinely appear on the docketing statement of every case brought before the nine Justices.

In fact, if it were not for a clerk’s error at the U.S. Court of Appeals for the 11th Circuit, the public might have never known M.K.B.’s case even existed. That’s because until the clerk’s office at the 11th Circuit inadvertently and briefly listed M.K.B.’s appeal on its public docket and on the federal courts’ electronic docketing system, known as PACER, the case and all of its filings had been kept entirely secret.

We now know just bits and pieces about M.K.B. and his case based upon the aforementioned mistaken disclosure, a redacted petition filed by M.K.B. with the U.S. Supreme Court and the reporting of a Miami legal newspaper. Specifically, M.K.B.’s name is Mohamed Kamel Bellahouel, and he is an Algerian who worked as a waiter in South Florida before the attacks of September 11, 2001. M.K.B. apparently came under scrutiny by the FBI in the aftermath of 9/11 because Mohamed Atta and Marwan al Shehhi, two of the al Qaeda hijackers, had dined at the restaurant where M.K.B. worked in the weeks prior to the terrorist attacks. M.K.B. was one of the more than 1,000 Arab men detained following the 9/11 attacks, and he was imprisoned for five months at the Krome Detention Center in Miami. He has been free on $10,000 bond since March of 2002, but still faces immigration charges and deportation for overstaying his student visa. His wife is an American citizen.

While under detention, M.K.B. filed a petition for a writ of habeas corpus seeking an explanation for and judicial review of his imprisonment. The federal district judge assigned to M.K.B.’s case closed all of the proceedings, going as far as to omit the case from the public docket, and the 11th Circuit then maintained that secrecy on appeal, hearing arguments behind closed doors and issuing a decision under seal on March 31, 2003. For these reasons, the public knows extremely little about the substance and merits of M.K.B.’s case, but what is clear is that we should know a lot more.

The courts have long recognized that judicial proceedings and records have historically been and ought to be presumptively open to the public. In fact, the U.S. Supreme Court has ruled that the First Amendment ensures the public and press have a right of access to criminal proceedings, and other courts have found a similar right of access exists for civil proceedings.

Opening the courtroom doors and courthouse files for public eyes serves far more important goals than just titillating interested observers. The public nature of our judiciary ensures the integrity of the legal process by fostering fairness, guarding against abuse and demonstrating the legitimacy of the decisions and verdicts reached. Thus, according to no lesser source than the Supreme Court itself, shining public light on the judiciary serves both the parties to legal actions and society as a whole.

These are the reasons why the High Court has ruled that a judge may only close criminal proceedings after making specific, on-the-record findings that "closure is essential to preserve higher values [than the public’s right of access] and is narrowly tailored to serve that interest." And these are the same reasons why the 11th Circuit held, more than 20 years ago, that civil proceedings "pertain[ing] to the release or incarceration of prisoners and the conditions of their confinement" are to be "presumptively open to the press and public."

Despite these holdings, the Justice Department continues to maintain that M.K.B.’s case must remain wholly under seal, apparently on grounds of national security. The Department’s position is no longer novel in this post-9/11 world. But in the case of M.K.B., it is also no longer tolerable in a free and open society. After all, not only did the Justice Department apparently not find enough evidence to file criminal charges against M.K.B., but the courts have implicitly dismissed any national security concerns associated with him, freeing him on bond nearly two years ago. Surely, it’s about time that justice not be so blind.