Federal Appeals Court to Hear NYCLU Arguments About Secret Court Opinion and NSA Warrantless Wiretapping

Affiliate: ACLU of New York
March 21, 2008 12:00 am

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March 21, 2008 – The United States Court of Appeals in Manhattan will hear arguments Monday morning in a criminal prosecution that presents a challenge to the constitutionality of the National Security Agency’s warrantless wiretapping program as well as a challenge to a secret lower court order and related government filings about the NSA program. The New York Civil Liberties Union is directly challenging the secret court order and secret government filings and also has filed a separate friend-of-the-court brief about the NSA program.

“The courts must not be complicit in President Bush’s campaign of secrecy,” said NYCLU Executive Director Donna Lieberman. “NSA spying is unconstitutional, and secret opinions only aid the government’s effort to keep the illegal campaign hidden away from public scrutiny and outrage.”

The issue of NSA spying arose in the prosecution of Yassin Aref and Mohammed Hossain, two American citizens from Albany who were the targets of a government sting operation that led to their conviction on charges of money laundering and providing material support to terrorism. Shortly after the press uncovered the existence of the NSA’s warrantless surveillance program in late 2005, the New York Times reported that government officials had identified Aref and Hossain’s prosecution as one that had been made possible by NSA surveillance.

Aref and Hossain argued that the prosecution was improper because it relied on the illegal surveillance program. The trial court rejected that effort in an entirely secret opinion after reviewing secret evidence and arguments from the government. After the lower court rejected the NYCLU’s effort to have the opinion and government submissions made public, the NYCLU appealed. At the same time, the defendants have appealed their convictions. The Court of Appeals will hear all the arguments on Monday morning.

“Secret court opinions are antithetical to the American system of justice,” said Corey Stoughton, NYCLU staff attorney and lead counsel on the case. “Especially when there are allegations of unlawful government surveillance and abuse of executive power at play, the public has a right to understand the government’s arguments and the courts’ justifications for their decisions.”

In light of the public’s important First Amendment right to understand what happens in the judicial process, the NYCLU is asking the appeals court to make public as much of the lower court opinion and of the government submissions as is possible while respecting the need to protect genuine government secrets.

Stoughton is scheduled to argue the case Monday in the ceremonial courtroom on the ninth floor of 500 Pearl St. Arguments will begin at around 11:30 a.m.

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