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The National security Agency’s warrantless wiretapping program is at issue in a case that a New York City federal appeals court is considering.
Deciding whether a terrorism suspect deserves a new trial because the government might have used secret wiretap evidence gathered without a warrant might seem like a complicated matter. But in March 2006, Federal District Court Judge Thomas J. McAvoy in New York’s Northern District dispensed with it in less than a page.
At least, that’s what he did in public. McAvoy filed his full decision in secret—apparently the first time a federal judge has issued a ruling that not only the public but also the defendant and the defense lawyers could not see. The U.S. Court of Appeals for the Second Circuit, on Pearl Street in Manhattan, is now considering a motion to reveal what McAvoy wrote.
That’s just one connection that the case of former Albany resident Yassin Muhiddin Aref has to the city. Aref and a co-defendant, Mohammed Hossain, were each sentenced in March 2007 to 15 years in prison for their role in a scheme to launder money to fund the purchase of a shoulder-fired missile that a government informant claimed would be used to kill a Pakistani diplomat in New York City. Aref’s role was to witness a loan that the informant made to Hossain as part of the money-laundering scheme. It was Aref, though, who was the feds’ target all along, after his name turned up in documents seized during U.S. military raids on militants in Iraq. The meaning of the documents has been disputed; the government admitted it mistranslated the word “brother” as “commander” in one of the references to Aref.
That’s not all Aref’s lawyers were prevented from seeing. In early 2006, shortly after The New York Times broke the news that the National Security Agency had intercepted phone calls involving callers in the United States, the Times reported that NSA intercepts might have figured into criminal cases—and quoted a government source identifying Aref’s trial as one of those cases. Aref’s lawyers moved to compel the government to “affirm or deny the existence of electronic surveillance” in the case and asked the judge to dismiss the case, arguing that evidence collected without a warrant is inadmissible.
When the Justice Department responded, it filed its papers in camera, ex parte, meaning only the judge (not the defendant or his lawyers, let alone the general public) could see them. Thus McAvoy—who has been on the federal bench since 1986, appointed by Ronald Reagan—ruled in secret on a secret motion by the government concerning a secret surveillance program. There’s no timeline on when the appeals judges will rule on whether McAvoy’s move was legal. It is possible that the appeals court will rule in secret too.
The NSA’s warrantless wiretapping might have violated the Foreign Intelligence Surveillance Act (FISA) of 1978, which required that the government seek clearance from a special court before conducting surveillance on domestic subjects. This does not appear to have been a burdensome requirement. From 1980 to 2006 the government requested approval from the court nearly 23,000 times, and the court only turned the government down outright on five occasions. The NSA wiretapping is one of several aggressive electronic-data-gathering programs to emerge after September 11. The government has acquired phone call records—not the content of the calls, just the numbers dialed—from telephone companies to look for patterns among the millions of calls, foreign and domestic, tracked in those databases. Internet service providers have handed over suscriber information to the government. And the government tapped into the information handled by the international SWIFT banking network in order to track terrorist cash. Last year, Congress approved an update of the FISA law that expanded what the government can do without seeking immediate FISA court approval. That law lapsed because of a dispute over whether phone companies should be immune from lawsuits over their cooperation with the warrantless program, but wiretapping operations that began under the law continued.
