Read Aref - Petition for Writ of Mandamus text version

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ----------------------------------x In re Yassin Aref, Petitioner, In re New York Civil Liberties Union, Petitioner-Intervenor. ----------------------------------x Petitioner-Intervenor, the New York Civil Liberties Union ("NYCLU"), hereby submits the following petition for writ of mandamus pursuant to 28 U.S.C. § 1651. This ) ) ) ) ) ) ) ) ) ) District Court Dkt# 04-CR-402 (NDNY) Petition for Writ of Mandamus by Intervenor NYCLU

petition is brought by way of intervention in a pending petition for writ of mandamus, In re Yassin Aref, filed today, March 24, 2006. PRELIMINARY STATEMENT 1. At issue here is the authority of a district

court, in a criminal case presenting fundamental constitutional questions about government authority to conduct warrantless wiretaps, to adjudicate a challenge to that those wiretaps through an entirely secret "classified" opinion based upon an entirely secret, ex parte submission from the government. Petitioner Aref seeks relief from the

court's secret orders on grounds, among others, of due process. He seeks an order requiring, among other things,

that the secret opinion and secret government submission be disclosed to the defendants. Petitioner NYCLU seeks broader


relief in the form of public access to these documents based on the First Amendment right of public access. 2. Withholding the entirety of a judicial opinion

from public scrutiny without any statement of the reasons supporting the determination is an unprecedented departure from the system of public adjudication contemplated by the Constitution. Courts do not have authority to issue entire The First Amendment creates a strong

opinions in secret.

presumption of public access to judicial documents, including judicial opinions and the submissions that inform those opinions. Any denial of public access must be

narrowly tailored and necessary to serve a compelling interest, even if that interest is national security. 3. The district court's decision to deny public

access to the whole of both its opinion and the government's opposition to the defendants' suppression motion, rather than to place these documents on the public docket with appropriate redactions, is not the narrowly tailored approach mandated by the First Amendment. This

constitutional failure is particularly significant in this case, given that the lower court's opinion and the government's submission deal with a matter of great national import: the legality of the controversial NSA warrantless

wiretapping program.




Defendants in the underlying criminal case,

Yassin Aref and Mohammad Hossain, have been indicted on several counts of money laundering and providing material support to terrorists. See Superceding Indictment (attached to Aref's Petition for Writ of Mandamus ("Aref Petition") as Ex. A). 5. On January 20, 2006, defendants filed a motion

asking the district court to suppress all evidence obtained as a result of any warrantless domestic wiretapping by the NSA. See Motion for Reconsideration (Jan. 20, 2006)

(attached to Aref Petition as Ex. Z). Defendants contended that because the entire investigation and sting operation leading to their arrests stemmed from such surveillance, and because the NSA surveillance program was unlawful, the indictments in this case should be dismissed. 6. Id.

On March 10, 2006, the government submitted an in

camera, ex parte submission in opposition to the defendants' suppression motion. See Status Report: Notice of Submission Even

(Mar. 10, 2006) (attached to Aref Petition as Ex. CC). the full title of this submission is redacted. 7. Id.

Less than two hours later on the same day, the

district court issued a one-page order denying defendants' suppression motion. See Order (Mar. 10, 2006) (attached to The order did not provide any

Aref Petition as Ex. DD).

basis or reason for the denial, except to refer to another, secret, "classified" order on the subject. No other orders or opinions were placed on the docket regarding this motion.



On March 24, 2006, defendant Aref filed a petition

for writ of mandamus in this Court under the All Writs Statute, 28 U.S.C. § 1651, arguing that the district court: (1) exceeded its authority by designating its judicial opinion as classified national security information; (2) failed to fulfill a duty to defendants to provide them access to at least some statement of the basis for that judicial opinion and to information in the government's submission that is relevant and helpful to the defense. 9. Petitioner NYCLU has filed a motion to intervene

in Mr. Aref's pending petition for writ of mandamus. Whereas Mr. Aref's petition attacks the district court's secret order and consideration of secret submissions for failing to consider the defendants' due process right to access, the NYCLU seeks to challenge the same district court actions for failing to consider the public's First Amendment right to public access. ISSUES 10. Although the government undoubtedly has an

important interest in protecting classified national security information, the decision to deny public access to the entirety of both the court's opinion and the government's opposition to the suppression motion is not a narrowly tailored response to that concern. The lack of

narrow tailoring violates the First Amendment, as argued fully in the NYCLU's Memorandum in Support of Public Access.



In particular, the district court's decision to

classify its entire opinion and deprive the public of any basis for that decision is wholly unprecedented. Courts are

not empowered to issue entirely secret opinions, as argued fully in the NYCLU's Memorandum in Support of Public Access. 12. The district court failed to follow the required

procedures for withholding its opinion and the government's submission from the public. Specifically, the district

court failed to make specific, on-the-record findings that the denial of access was necessary and narrowly tailored to accomplish a compelling governmental interest, and failed to consider and reasonably reject alternatives to a denial of access. 13. The district court's attempt to designate its

opinion as a "classified" opinion ignored the Constitution's exclusive investment of the power to make such decisions in the Congress and the President as well as a comprehensive procedure for making such decisions articulated by those branches of government, as argued fully in the NYCLU's Memorandum in Support of Public Access. RELIEF SOUGHT Wherefore, the NYCLU respectfully requests the following relief from this Court: (a) (b) Assume jurisdiction over this matter; Grant the public access to the district court's "classified" opinion (redacted only to the extent necessary to protect classified information);



Grant the public similar access to any opinions or orders classifying, sealing or otherwise withholding from the public any materials related to the suppression motion;


Grant the public similar access to the government's opposition to the motion;


Issue an order requiring the district court to make public, written findings regarding the need for any redactions or further secrecy surrounding the suppression motion;


Provide any other relief the Court deems appropriate.

Respectfully submitted, NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by _______________________________ ARTHUR EISENBERG CHRISTOPHER DUNN COREY STOUGHTON th 125 Broad Street, 17 Floor New York, N.Y. 10004 212) 344-3005 Dated: March 24, 2006 New York, NY



Aref - Petition for Writ of Mandamus

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