On Sunday, The New York Times wrote about a truly bizarre criminal prosecution here in New York. It's bizarre on many levels. It involves two men, Mohammed Hossain and Yassin Aref, who were convicted of supporting terrorism after an elaborate FBI sting operation allegedly found them supporting a fake assassination plot. Illegal NSA surveillance may have spurred the sting operation. The case involves secret arguments by the government, and more astonishingly, secret opinions by the judge that only government prosecutors were allowed to read.
It sounds like a made-for-Hollywood entrapment plot, but I'm afraid it's all too real. Last Friday, the ACLU's National Security Project and the New York Civil Liberties Union filed a brief in the Second Circuit Court of Appeals, the court hearing Hossain and Aref's appeal of their criminal convictions. In the brief, we argue that the government should not be allowed to use evidence obtained through illegal NSA surveillance in criminal prosecutions of American citizens, and that the possibility that these defendants were the victims of illegal surveillance by the NSA warrants examination by the court.
The government was in the middle of prosecuting Hossain and Aref on charges of money laundering and providing material support to terrorism when The New York Times revealed the existence of the NSA wiretapping program in December 2005. In response to that story, government officials mounted a vigorous public relations campaign to convince the public that the illegal surveillance program was in fact legal, necessary and effective. Anonymous government officials even admitted in a second New York Times article in January 2006 that Hossain and Aref were surveilled by the NSA, and used their prosecution as an example of the program's success.
But after all of this public blabbing about the NSA program, the government clammed up once it was dragged to court to defend its actions. In civil cases like the ACLU's case challenging the NSA spying program, rather than defending the legality of the NSA program, the government pulled out every argument in the book to avoid accountability. Its most remarkable assertion is that the illegal program is too secret to be probed in a court of law.
As we see in Hossain and Aref's case, the government is also using secrecy as a weapon in criminal cases where illegal NSA spying might be at issue. After reading the January 2006 New York Times article, Hossain and Aref's lawyers demanded the government acknowledge in court that the pair was illegally surveilled. But rather than publicly disclose whether Hossain and Aref were indeed the victims of illegal spying (which the government is required to do by law), the government responded with secret legal papers only the judge could see. Hours later, the judge issued a classified decision that only the government could see -- denying Hossain and Aref's request to know if they had been subject to illegal NSA surveillance. Because secret judicial opinions are quite radical and unprecedented -- they're more Kafka than American justice -- the NYCLU and others fought for public release of the judge's decision. (The effort was unsuccessful in district court; the NYCLU is still fighting for the opinion's release in appeals court). Hossain and Aref were convicted and sentenced to a long time in prison without ever knowing whether illegal NSA surveillance led to their conviction.
Now, it's a pretty basic rule that the government is not allowed to prosecute you for a crime based on evidence it gathered illegally, like evidence obtained through warrantless surveillance that is not based on probable cause. Yet it is quite possible that a number of criminal prosecutions in the past few years have been tainted by illegal surveillance by the NSA. We just don't know. The government's not telling. Who knows what they are saying in their secret papers? In this case, not even the judge is telling. Secret decisions and prosecutions that may be based on illegal evidence are not how American criminal trials run. Period. Something has gone horribly awry.
The government's use of secrecy as a weapon to avoid accountability for the illegal NSA program is bad enough when it is employed in the nearly 50 civil cases challenging the program. But it is a problem of an altogether greater magnitude when it is used in criminal cases, because the stakes are much higher. A conviction can lead to years in prison.
If defendants like Aref and Hossain have been the victims of illegal NSA surveillance, their convictions raise constitutional concerns of the highest order. At the very least, the courts should examine the issue seriously and openly, and rectify violations when necessary. The courts should not accept the government's secret arguments at face value. And the courts certainly shouldn't issue secret opinions on these important matters. Justice meted out in secret is not justice at all.