Federal Court Should Release Secret Court Opinion And Secret Documents In NSA Spying Case, NYCLU Argues

The New York Civil Liberties Union yesterday asked a federal appeals court to release a secret lower court opinion and secret government documents in a case challenging the constitutionality of the National Security Agency’s warrantless surveillance program.

The documents and the written opinion relate to the defendants’ accusation that the government prosecuted them illegally based on evidence derived from the controversial NSA spying program. In an unprecedented act, the trial court issued a secret opinion rejecting that argument. In addition, the court allowed the government to file a secret set of papers defending the wiretap.

“The government’s effort to keep these documents from the public is part of an overall campaign to shield illegal NSA spying from public scrutiny,” said NYCLU Executive Director Donna Lieberman. “As Congress continues to press the President and the Attorney General for an honest account of the origins and operation of the NSA program, the courts must not be complicit in this campaign of secrecy.”

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 court rejected that effort in an entirely secret opinion after reviewing secret evidence and arguments from the government. That opinion and evidence are at issue now: after the NYCLU asked the court to unseal the secret opinion and secret government documents and the court refused, the NYCLU has now appealed that decision to the federal Second Circuit Court of Appeals in New York City.

“Secret court opinions are completely out of place in the American justice system,” 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.”

The NYCLU’s brief asks the appeals court to review the secret documents and strike a better balance between the need to protect genuine government secrets and the public’s right, rooted in the First Amendment to the Constitution, to understand what happens in the judicial process.

Click here to read the NYCLU’s brief (PDF).