NEW YORK -- The New York Civil Liberties Union today formally requested that the United States Court of Appeals open to public view a secret lower court order about the National Security Agency's warrantless wiretapping program. The secret order, which was neither given to the defendant in the case nor publicly released, was issued by a federal judge in Albany in response to a motion challenging the legality of the NSA's warrantless wiretapping program.
 
"The defendant has every right to see a court opinion that will affect his plight," said NYCLU Executive Director Donna Lieberman. "And under the First Amendment, the American public has the right to see those papers as well. In this country we do not have secret courts."

The lower court based its secret opinion on papers the court had allowed the government to file only with the court, without the defendant or public having any access to them. On Friday, the defendant filed a petition with the Court of Appeals seeking access to the opinion and to the government's submission, and the petition filed by the NYCLU today seeks access to those documents for the public at large.

Judge Thomas McAvoy issued a public order from his Albany court on March 10th, 2006, in which he disclosed that he had entered a separate secret and "classified" decision regarding the defendant's challenge to the lawfulness of the wiretapping program. The NYCLU is unaware of any instance in which a federal court opinion has been allowed to be entirely secret.

The defendant had brought the challenge to the constitutionality of the wiretapping program because public reports had indicated that the government's case against him was based on a wiretap from the NSA program. Just hours before Judge McAvoy ruled, the federal government had filed papers opposing the defendant's challenge to the NSA wiretapping program, also in secret. The government declared that only the judge could read its papers, and the judge agreed.

The papers filed by the NYCLU today argue that the First Amendment requires that the public have access to the District Court's secret decision as well as to the government's secret submission. Properly classified information contained in the opinion and government filing can be kept confidential, the NYCLU argues, without making the entire ruling secret.

"The First Amendment provides a broad right of access to judicial proceedings in this country," said NYCLU Associate Legal Director Christopher Dunn. "Court rulings about the NSA wiretapping program are of paramount importance and must be open to the public. In addition, the government's defense of this program cannot be hidden from public view."

NYCLU Legal Director Arthur Eisenberg and NYCLU Staff Attorney Corey Stoughton are also counsel on the case.

The NYCLU’s petition is available at: www.nyclu.org

The American Civil Liberties Union challenged the NSA’s warrantless wiretapping in a lawsuit filed earlier this year on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations. More information about the lawsuit is available online at: www.aclu.org/nsaspying