A federal appeals court today heard arguments from the New York Civil Liberties Union in a case challenging a secret court ruling about the constitutionality of the wiretapping program being operated by the National Security Agency (NSA). At issue in the hearing was the government's effort to block the NYCLU from entering the case to make public a lower court ruling about the wiretapping program.
The arguments revolved around the government's opposition to the NYCLU's involvement in the case. They did not reach the merits of the government's argument that prosecutors' court documents and judges' decisions may be filed in secret, without the defendant or public having any access to them. The NYCLU is unaware of any instance in which a federal court opinion has been allowed to be entirely secret.
The hearing arises out of the government's prosecution of Yassin Aref in Albany. After the New York Times reported that Aref's prosecution was based on an NSA wiretap, the defendant sought to have the case dismissed. The NYCLU then sought to enter the case before the District Court to address the constitutionality of the NSA program. Before ruling on that request, however, the District Court allowed the government to file secret papers opposing the dismissal, and the court then issued its secret decision rejecting the defendant's request. The defendant then appealed to the Court of Appeals to challenge the secrecy of the filings, and the NYCLU sought to intervene in that appeal. The government has opposed the NYCLU's intervention.
NYCLU Legal Director Arthur Eisenberg made today's arguments. NYCLU Associate Legal Director Christopher Dunn and Staff Attorney Corey Stoughton are also counsel on the case.