Federal judge delivers a secret ruling in New York


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Sergeant Sabre
March 11, 2006, 03:31 PM
A classified ruling based on classified evidence, niether of which the defense may review or contest? No, this story isn't from China or Cuba. It just happened in New York.

A long article, so here are the cliff notes:
Two individuals associated with a Mosque in New york are accused of laundering money in connection with terrorist operations.

The defense for the two men requested a dismissal. The prosecution submitted classified documents to the judge, which the defense was not allowed to review. The judge then denied the dismissal request, saying that the basis for his decision was classified.

The defense lawyers, who have some sort of clearance, have not been allowed to review the papers submitted by the prosecution or read the basis for the judge's decision.

The article (http://www.nytimes.com/2006/03/11/national/11terror.html):

Judge Issues Secret Ruling in Case of 2 at Mosque

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By JULIA PRESTON
Published: March 11, 2006
A federal judge issued a highly unusual classified ruling yesterday, denying a motion for dismissal of a case against two leaders of an Albany mosque who are accused of laundering money in a federal terrorism sting operation.

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way.

The defense lawyers had asked the judge to dismiss the case, saying that they believed the government's evidence came from wiretaps obtained without a warrant by the National Security Agency.

The two mosque leaders, Yassin M. Aref, 35, and Mohammed M. Hossain, 50, were charged in August 2004 with conspiring with a government informant to take part in what they believed was a plot to import a shoulder-fired missile and assassinate a Pakistani diplomat.

The classified order by Judge Thomas J. McAvoy of United States District Court for the Northern District of New York came only a few hours after the government filed its own classified documents to the judge. Prosecutors were responding to a motion filed on Jan. 20 by Mr. Aref's lawyer, Terence L. Kindlon.

The prosecutors asked the judge to review their papers in his chambers without making them public or showing them to the defense. At midafternoon the judge issued a document announcing that he had entered the classified order denying Mr. Kindlon's request.

It is common in federal court for judges to place documents and legal discussions under seal, meaning that the judge and the lawyers can be informed of the proceedings, but the public cannot. In this case, Judge McAvoy's order is classified, a higher degree of secrecy. As of late yesterday, Mr. Kindlon, even though he has a federal security clearance to represent Mr. Aref in the trial, had not been able to see the substance of the ruling.

"Frankly, I'm taken aback," Mr. Kindlon said. The ruling "holds out no promise of anything" for him to see the decision, he said.

Christopher Dunn, a lawyer for the New York Civil Liberties Union, which has asked to participate in the case, said such decisions appeared to be rare. Mr. Dunn said his group had no record of a classified decision in a case that it had handled.

In his motion, Mr. Kindlon cited an article in The New York Times on Jan. 17 that reported that "different officials agree" that the security agency's program had "played a role" in the arrest of Mr. Aref and Mr. Hossain. Mr. Hossain's lawyer, Kevin A. Luibrand, joined the request to dismiss the case.

Mr. Kindlon asked that all evidence in the case stemming from N.S.A. wiretaps be given to the defense. He argued that the program was unconstitutional and so the evidence should be suppressed.

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal N.S.A. operation was justified because it was the only way to catch Mr. Aref," Mr. Kindlon wrote in his brief.

Whether or not the program is constitutional is a matter of intense political and legal debate that has not been resolved by the courts. Since the government classified its motions, there is no way at this point to know what argument persuaded Judge McAvoy.

The arrest of Mr. Aref, an Islamic scholar who is the imam of Masjid As-Salaam in Albany, and Mr. Hossain on Aug. 5, 2004, came after a yearlong sting operation in which the informant posed as a terrorist. They are accused of agreeing to launder $50,000 in payments for a Chinese missile that he showed them.

At first, prosecutors said that both men had ties to a terrorist group known as Ansar-al-Islam. The government soon dropped those claims after it turned out they were based on a bad translation of a piece of evidence by the Defense Department. Mr. Aref was free on bail for 13 months, but he was sent to prison to await trial after the government brought new charges. Mr. Hossain remains free on bail.

Mr. Kindlon said Judge McAvoy's action convinced him that there was N.S.A. wiretap evidence in the case. "If they were not involved, the government would have told me, 'You're delusional,' " he said.

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Sindawe
March 11, 2006, 03:54 PM
Secret judgments that defense counsel is not permitted to view, based on secret evidence that defense counsel is not permited to view. Is this a great country or what? EVEYBODY SING ALONG!!!

Horst Wessel Song

Die Fahne hoch die Reihen fest geschlossen
S. A. marschiert mit ruhig festem Schritt
Kam'raden die Rotfront und Reaktion erschossen
Marschier'n im Geist in unsern Reihen mit

Die Strasse frei den braunen Batallionen
Die Strasse frei dem Sturmabteilungsmann
Es schau'n auf's Hackenkreuz voll Hoffung schon Millionen
Der Tag fur Freiheit und fur Brot bricht an

Zum letzen Mal wird nun Appell geblasen
Zum Kampfe steh'n wir alle schon bereit
Bald flattern Hitler-fahnen Uber allen Strassen
Die Knechtschaft dauert nur mehr kurze Zeit

Die Fahne hoch die Reihen fest geschlossen
S. A. marschiert mit ruhig festem Schritt
Kam'raden die Rotfront und Reaktion erschossen
Marschier'n im Geist in unsern Reihen mit

:scrutiny:

beerslurpy
March 11, 2006, 03:56 PM
And I thought that was against the rules. I cant wait to go to law school so I can correct all these misperceptions.

Whats the point of having trials if there isnt any due process? Lynchings accomplish the same miscarriage of justice more efficiently. If you are more of a statist, you can call them "summary executions."

orangeninja
March 11, 2006, 04:24 PM
If the information collected would compromise the source of intelligence and the agent is still working covertly, then the evidence will not be made public due to the safety concerns of that agent.

I for one have no problem with this. Protect your source, especially if still in the field as an active agent.

Vern Humphrey
March 11, 2006, 04:30 PM
I think we should re-read the article again. This was not a trial. This was a preliminary motion for dismissal.

JohnBT
March 11, 2006, 04:33 PM
"In his motion, Mr. Kindlon cited an article in The New York Times on Jan. 17 that reported that "different officials agree" that the security agency's program had "played a role" in the arrest of Mr. Aref and Mr. Hossain."

He cites a New York Times article that says "different officials agree" and then complains when unknown sources are used to refute it. Pfui.

John

Lucky
March 11, 2006, 04:39 PM
I don't know about this case, but we have a similar set-up in Canada now for some trials.


alduro "If the information collected would compromise the source of intelligence and the agent is still working covertly, then the evidence will not be made public due to the safety concerns of that agent.

I for one have no problem with this. Protect your source, especially if still in the field as an active agent."


I respectfully disagree upon the order of priorities. It seems to me that an awful lot of rules have been written, and worded explicitly so that the order of priorities would never get confused, like that. Fundamental freedoms should be #1, and then convenience for gov't operating would be #2, in all circumstances. Even if it's Kieffer Sutherland and the fate of the universe is at stake.

orangeninja
March 11, 2006, 04:48 PM
Well, it's based on international terrorism, these men were caught by the NSA, a military organization, but it fails to say if these men are American citizens or not.

The judge appears to have followed the law in this case, and I personally don't believe the Constitution applies to non-citizens...but that's just me.

gc70
March 11, 2006, 06:04 PM
The defense lawyers had asked the judge to dismiss the case, saying that they believed the government's evidence came from wiretaps obtained without a warrant by the National Security Agency.Typical "kill the trial before it gets started" defense strategy, dismissed by the judge. If illegally-obtained evidence is introduced during the trail, the defense can deal with that during the trial.

Mr. Kindlon asked that all evidence in the case stemming from N.S.A. wiretaps be given to the defense. He argued that the program was unconstitutional and so the evidence should be suppressed.An interesting motion to both prevent evidence from being presented during the trial AND give the defense a copy of the information that would be barred from the trial.

<conjecture>The prosecutors may have told the judge that there is NSA information about the defendants but that information was not the basis for the case and would not be used in the trial. In such a situation, I can see the judge ruling that the case would proceed but NSA information would not be allowed. If NSA information was not part of the case, the defense lawyers would have no need to fish around in classified national intelligence information not relevant to their case.

Sergeant Sabre
March 11, 2006, 06:24 PM
Typical "kill the trial before it gets started" defense strategy, dismissed by the judge. If illegally-obtained evidence is introduced during the trail, the defense can deal with that during the trial.

It very well may be silly manuevering by the defense. However, in any other trial I've ever read about or heard of, the judge usually makes a public ruling based on evidence that is made public.

The concerning part of the case in point is that the judge made a ruling based on evidence that the defense is not allowed to review, then declared that the defense is not entitled to review the basis of the ruling.

In essence, it seems that the judge said "The court denies the motion, you don't get to know why, nor to you get to know what evidence I have reviewed to make my decision."

gc70
March 11, 2006, 06:32 PM
If the ruling was during the trial, I would be concerned. As part of the pre-trial process, I am less concerned because the defendants will still get their day in court.

ElTacoGrande
March 11, 2006, 06:36 PM
It's a Star Chamber!

Hawkmoon
March 11, 2006, 06:40 PM
Well, it's based on international terrorism, these men were caught by the NSA, a military organization, but it fails to say if these men are American citizens or not.
The NSA is a military organization? Since when? To what branch of the military do they belong? What's the command structure? Who is the commanding officer and what rank does he/she hold?

I believe the NSA is part of the Executive Branch, not the military.

Wiley
March 11, 2006, 06:49 PM
Hawkmoon, the Military is part of the Executive Branch.

LoadAmmo
March 11, 2006, 10:29 PM
Did he rule the Constitution is no longer valid?

Lupinus
March 11, 2006, 10:44 PM
that is acceptable in military court, no way in hell is it permisable in civilian court.

mwelch8404
March 12, 2006, 12:12 AM
4. Discovery of classified information by defendants

The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(Pub. L. 96-456, 4, Oct. 15, 1980, 94 Stat. 2025.)

US Code Title 18.


Surprisingly for many of you, all nice and legal...

Just as a reminder, Jimmy Carter was pres...

Leatherneck
March 12, 2006, 08:34 AM
However, in any other trial I've ever read about or heard of, the judge usually makes a public ruling based on evidence that is made public.

The judge did. Motion to dismiss denied. Come to trial, where different rules will apply.

TC

TequilaMockingbird
March 12, 2006, 06:24 PM
The NSA is a military organization? Since when? To what branch of the military do they belong? What's the command structure? Who is the commanding officer and what rank does he/she hold?

From Wikipedia (http://en.wikipedia.org/wiki/Nsa) (not always the last word on every subject, but at least a place to start):
Established by a U.S. presidential executive order, the NSA works closely with the Department of Defense and has always been directed by a three-star flag or general officer

Is it part of the military? The origins of the National Security Agency can be traced to an organization originally established within the Department of Defense, under the command of the Joint Chiefs of Staff as the Armed Forces Security Agency (AFSA), on May 20, 1949. ... As the change in the security agency's name indicated, the role of the NSA was extended beyond the armed forces.

Further reading:
James Bamford, Body of Secrets, Doubleday, 2001.
James Bamford, The Puzzle Palace, Penguin Books, 1983.

LAK
March 13, 2006, 06:17 AM
alduroIf the information collected would compromise the source of intelligence and the agent is still working covertly, then the evidence will not be made public due to the safety concerns of that agent.

I for one have no problem with this. Protect your source, especially if still in the field as an active agent.
And the net result of this idea is;

a license in the "intelligence community" and among any of their business cronies - in the course of their dope and arms smuggling, prostitution rings, money laundering - etceteras - to set up anyone they please.

Even if our government and intelligence organizations had been formed squeaky clean - from scratch - today; what are the prospects for the general integrity of a huge organization of paid soldiers and their bosses mixing it up with a web of drug and arms dealers etc, when the stakes at interface runs into the trillions? How long before the whole pile begins to stink?

An accused has the right to confront the witnesses and evidence against them.

Interesting question concerning the jurisdiction of the court; an Admiralty Court perhaps?

mwelch8404 What's the problem?
4. Discovery of classified information by defendants
No problem I guess; the federal government inserts a "law" allowing itself to be able to keep anything it pleases out of the courts and public eye merely by saying "it's a secret".

Didn't An associate of George H W Bush hand over a large sum of cash through a Mexican money handler on behalf of his buddy Richard Nixon - so that E. Howard Hunt would keep his mouth shut and keep their secrets, secret?

If the oligarchs and the Feds want to keep all their assassinations, arms dealing, drug smuggling etc, secret; why don't they just pay everyone off instead of trying to use the courts to cover their filth? Why don't they just pay off Hossain and Aref like they did Hunt and all the others?
-----------------------------------------------

http://ussliberty.org
http://ssunitedstates.org

JohnBT
March 13, 2006, 07:36 AM
"An accused has the right to confront the witnesses and evidence against them."

Like the man said, that's what the trial is for.

"I think we should re-read the article again. This was not a trial. This was a preliminary motion for dismissal."

John

Henry Bowman
March 13, 2006, 09:23 AM
I cant wait to go to law school so I can correct all these misperceptions.Expect to be disappointed. There is not enough time to include interesting topics in class, unless it is the prof's pet topic.

CAS700850
March 13, 2006, 09:40 AM
Amen. Law schol is where you go to assimilate what they throw at you, long enough to pass the course, then the Bar exam. Anything you learn in law school which actually carries over into proactice will be the exception, not the rule.

BTW, as to the original topic, most states, I assume, allow for a judge to review information in camera, meaning in chambers, off the record, when ruling on a motion such as this. The reason is that, in many cases, exposure of the materials could be detrimental to a party (I used to see it often when I handled juvenile matters, with respect to adoption records, psych evaluations, etc.). If the material was formally introduced to the court, it would become a part of the court's file, and thus likely open to public review. I can't speak for all of you, but I sure wouldn't want the contents of a psych eval on me made a public record...

And yes, the rules at trial are far different.

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