Commentary: Do you really think we need to have this discussion?

Daily Record (Rochester, NY), Nov 2, 2007 by Scott Forsyth

Eavesdropping by the National Security Agency on international telephone calls?

Papers opposing a motion to suppress data collected by the NSA sealed at the request of the Justice Department?

A court decision on the motion also sealed at the request of the Department of Justice?

Could all of this happen in America? Yes, in a case arising out of Albany.

Were the actions legal? A federal appeals court will have to tell us.

The case started out with a splash. The government tried and convicted two Muslim Americans for agreeing to launder money as part of a fake assassination attempt on a Pakistani diplomat, see U.S. v. Aref, 04-CR-402 (NDNY).

While the case was pending, The New York Times revealed the NSA was eavesdropping on calls involving suspected terrorists without first obtaining warrants from the Foreign Intelligence Surveillance Court. Later, the Times reported the FBI found most of the data gathered by the NSA to be useless.

"Unnamed government sources" pushed back, citing the two Muslim Americans from Albany as a successful investigation that resulted from NSA leads.

The defendants did not know of the leads, and the Justice Department did not tell them before trial. Believing the surveillance program violated several statutes and the Fourth Amendment, the defendants filed a motion to suppress the NSA information, as "the fruit of a poisonous tree."

The Justice Department submitted papers in opposition and requested the court to seal the papers in their entirety. It also requested the court to seal its opinion. Surprisingly, the court did both and only announced the result -- motion denied, see U.S. v. Aref, 2007 WL 603508 (NDNY Feb. 22, 2007).

The U.S. Supreme Court has held repeatedly that there is "presumption of openness" with respect to judicial documents. To overcome this presumption, the government must demonstrate "closure is essential to preserve higher values and is narrowly tailored to serve that interest," Press-Enterprise Co. v. Superior Court of Calif., Riverside Co., 464 US 501, 510 (1984).

Circumstances justifying closure will be "rare." While na-tional security may be such a higher value, redacting sensitive information from a judicial document is the usual remedy, not a total sealing.

The U.S. Supreme Court has not addressed the power of a court to seal an entire opinion. The few appellate and district court cases on the subject have uniformly condemned the practice, see Hicklin Engineering, L.C. v R.J. Bartell, 439 F3d 346, 348-49 (Seventh Cir. 2006) and the cases cited therein.

The rationales for public opinions are weighty. Public opinions educate the people about the functioning of the judicial system and force judges to explain the reasoning behind their decisions. The dissemination of the opinions deters partiality and bias and generally limits judicial power. "In short, justice must not only be done, it must be seen to be done," U.S. v. Rosen, 487 FSupp2d 703, 715-716 (E.D. Va. 2007).

The potential for justice in the Albany case is great. In the summer, the ACLU lost a challenge to the NSA surveillance program on procedural grounds. The plaintiffs -- journalists, educators and lawyers who regularly communicated overseas -- could not prove the NSA had eavesdropped on their conversations, ACLU v. Nat'l. Sec. Agency, ___ F3d ___ WL 1952370 (Sixth Cir. 2007).

The Albany defendants do not face this obstacle. Hopefully, the federal Second Circuit Court of Appeals will unseal the government papers and the district court's opinion. Then it will use the case to rule on an issue of national significance -- the legality of the eavesdropping program.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or sfors@frontiernet.net.