Judge Issues Secret Ruling in Case of 2 at Mosque

original link http://www.nytimes.com/2006/03/11/n... March 11, 2006
Judge Issues Secret Ruling in Case of 2 at Mosque
By JULIA PRESTON
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.