ALBANY, N.Y. A federal judge yesterday issued an order to keep secret his controversial ruling regarding the government's warrantless wiretapping program, citing national security concerns.
"The Court finds that the Government's interest in protecting the national security and preventing the dissemination of classified information outweighs the defendants' and/or the public's right of access to these materials," U.S. District Judge Thomas McAvoy wrote.
On March 27, the New York Civil Liberties Union had asked the 2nd U.S. Circuit Court of Appeals to force McAvoy to unseal the ruling involving two members of an Albany mosque, arguing that the First Amendment requires the ruling be made public.
"Courts do not have authority to issue entire opinions in secret," the NYCLU said. On March 24, defense lawyers for the men asked the same appeals court to say the judge erred in letting authorities keep information about wiretaps secret.
The two men Yassin Aref, imam at the mosque, and Mohammed Hossain, a pizzeria owner and mosque member are accused of laundering money in 2003-04 for an FBI informant, a Pakistani businessman posing as an arms dealer.
The mosque was raided by federal agents on Aug. 5, 2004, following a yearlong sting aimed at Aref.
The defense lawyers argued that charges against their clients should be tossed out and evidence from wiretaps should be suppressed because illegal wiretaps may have been used.
President Bush has defended the National Security Agency's warrantless wiretap program, saying it is an effective tool to disrupt terrorists and insisting it is not an abuse of Americans' civil liberties. Details about the program have not been disclosed.
McAvoy rejected the defendants' suppression motion March 10, only hours after the government submitted a secret court document opposing it. The judge's classified ruling had left his reasons secret. He issued a three-sentence public order saying the motion was dismissed.
Yesterday, McAvoy wrote that prosecutors "represented that the materials contained classified information impacting the national security of this country" and also presented a proposed order "that contained information deemed classified by the Government."
The judge reviewed the material and decided to sign the proposed order. "The order was designated a 'classified order' because it contained information deemed classified by the Government," he wrote yesterday.
Both the prosecutors' secret document and the order "were so limited in scope and so interrelated with classified information," McAvoy wrote, that it would have been "impossible" to issue a redacted order "that did not disclose classified information."
Donna Lieberman, executive director of the NYCLU, said yesterday that the group would seek an independent review of McAvoy's decision by the federal appeals court.
"The First Amendment requires a strong presumption in favor of openness," she said. "Our action will continue."