Yassin M. Aref - Appeal

Appeal

Aref’s appeal is currently pending, along with that of Hossain, before the Second Circuit Court of Appeals in New York City. Oral argument on the appeal was expected in January 2008, and a decision sometime after that, most likely in the winter or spring.

As reported on the front page of The New York Times on August 26, 2007, the Aref appeal may be an important test case for the NSA warrantless wiretapping program, as it appears to be the only criminal case where there is strong evidence that the program was used to target a defendant.

In December 2005, The New York Times revealed that President Bush had taken the controversial step of secretly authorizing the NSA to expand its surveillance to within the US. A month later another NYT article quoted government officials as saying that the NSA program led them to Aref. On January 20, 2006, Aref’s lawyers filed a motion challenging the case against Aref as tainted by the illegality of the NSA program–the motion stated,

“The government engaged in illegal electronic surveillance of thousands of US persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a non-existent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref!”

On March 10, 2006, the government filed a response to the defense motion which was completely classified, something defense attorneys and the NYLCU said was virtually unheard of and a violation of the 6th Amendment right to confront evidence. Approximately two hours later Judge McAvoy denied the defense motion in a “Classified Order,” something even more unheard of.

Then on March 22, 2006, the defense filed a petition for mandamus with the Second Circuit Court of Appeals, challenging Judge McAvoy’s decision and arguing that the process had violated Aref’s constitutional rights–the NYCLU also filed a brief supporting the right of public access to court decisions. In July 2008, the Second Circuit dismissed Aref's petition in part, and in remaining part denied it; it also dismissed NYCLU's petition for lack of jurisdiction and denied the organization's motion to intervene as moot. In a separate ruling the appellate court The federal appeals court upheld the conviction and rejected all the defense's arguments, including that the men did not know missiles were involved. "The evidence sufficed for a jury to conclude that Aref intended to aid in preparing a missile attack on American soil," the ruling said, concluding the same for Hossain.