United States v. Aref et al. (Upholding public’s right to access “secret” documents used in criminal prosecutions)

This case addresses whether or not the public has a right to access secret documents that were used in a criminal prosecution. In September 2005, Yassin Muhiddin Aref and Mohammed Mosharref Hossain were indicted for conspiring to sell illegal firearms, money laundering, and providing material support and resources to a terrorist organization. The government alleged that Aref and Hossain knew that their actions would aid a terrorist organization and that Aref had prior connections with radical groups. After Aref and Hossain were indicted, an article in The New York Times quoted government officials as saying that Aref’s case resulted from evidence gathered by the National Security Agency domestic wiretapping program.

On January 5, 2006, defense attorneys filed a motion requesting that the government disclose any information detailing whether or not the defendants had been the targets of a NSA wiretapping investigation. On Jan. 9, 2006, Aref’s attorneys filed a motion to suppress the government’s confidential evidence. The government responded with an ex parte, sealed submission. On March 10, 2006, the judge denied the defense’s motion, but a corresponding order was filed ex parte and under seal. In response, the defense filed a writ of mandamus in the United States Court of Appeals, Second Circuit asking the Second Circuit to vacate the District Court’s order and force the government to disclose any information pertaining to the NSA surveillance. The NYCLU also filed a mandamus seeking public access to the secret opinion and government submission. On June 23, 2006, the Second Circuit dismissed Aref’s petition for lack of jurisdiction.

The Court also denied the NYCLU petition on the grounds that it lacked jurisdiction because its request to intervene must be directed to the District Court in the first instance. On Aug. 1, 2006, the NYCLU filed a motion for limited intervention in the case for the purpose of gaining public access to the secret opinion and government’s secret submission. The motion also asked that the District Court provide “fact-based, on the record justifications” for continuing to seal the March 10 opinion and the government’s submission because of First Amendment public access requirements. On Feb. 22, 2007, the District Court denied the NYCLU’s motion to intervene and motion for public access. The NYCLU filed an appeal to the U.S. Court of Appeals for the Second Circuit on March 9, 2007 seeking release of the secret court opinion and secret government legal papers. On July 2, 2008, the Second Circuit affirmed the lower court’s decision. 

N.D.N.Y., Index No. 04-CR-402, United States Court of Appeals, Second Circuit, Index No. 07-0981-cr. (amicus, intervenor)