Justice Denied

We will have a press conference/speakers on Friday, March 7 at 10:00 AM to discuss the court’s denial of allowing Yassin Aref to file his appeal.

Everyone is invited to attend.  Below is the announcement:

MEDIA ADVISORY

FOR IMMEDIATE RELEASE

March 5, 2014

Email: lynnejackson@mac.com

MEDIA CONFERENCE WILL HIGHLIGHT

SECOND CIRCUIT’S DENIAL OF PERMISSION TO FILE AREF MOTION

But warrantless wiretapping notification not yet received from DOJ

Project SALAM, the Muslim Solidarity Committee, and the attorney for Yassin Aref, the Albany imam convicted as a “terrorist” in a fake FBI sting in 2006, will hold a media conference on Friday, March 7 at 10 a.m. at the new section of the Masjid As-Salam, 280 Central Avenue, to discuss the unfortunate March 3 decision by the 2nd Circuit Court of Appeals regarding Aref’s “prisoner’s appeal.” The 2nd Circuit’s decision to deny Aref permission to file his appeal with the district court (called a 2255 motion) essentially holds that the 2nd Circuit does not care whether the government lied to it about the defendant. This decision spells the death of free and fair trials.

Speakers at the media conference will include Kathy Manley, Aref’s appeal attorney; former Albany Common Councilman Dominick Calsolaro, who sponsored the “Albany Resolution” in 2010 that called for the release of possibly exculpatory evidence based on warrantless surveillance in terrorism cases; and Joe Lombardo, a coordinator of United National Antiwar Committee, a national peace and justice organization concerned with Muslim terrorism prosecutions. Both media and the public are invited to attend.

Aref’s 2255 motion for a new trial was based on the circumstantial evidence that the government, in classified briefs and ex parte contacts, secretly and falsely told both the district (trial) court and the 2nd Circuit Court of Appeals that Yassin Aref was actually an Al-Qaeda agent named Mohammed Yassin. This information was untrue: Mohammed Yassin was killed in 2010, and so Yassin Aref could not possibly have ever been Mohammed Yassin. The 2nd Circuit could have looked at the classified secret briefs in the case to determine if this circumstantial allegation were true, but instead it issued an absurd, two-sentence opinion denying permission to even file the 2255 motion, holding that since the allegation, even if true, did not prove that Yassin Aref was innocent, the court would not look to determine if the government had secretly lied to it about Aref’s identity.

Lost in the court’s reasoning is the right of a fair trial and a fair appeal. If the court received false secret information that the defendant was a terrorist, when in fact he never was, how can a trial or an appeal be fair? No court would permit the government to secretly lie to it about a defendant and hold that the trial was fair: it is against the very nature of an independent judiciary and the rules governing judicial conduct for the court to consider secret evidence that the defendant is not permitted to see. But the 2nd Circuit has essentially said that it doesn’t care if the government secretly lied to the court, and that no consideration will be given to allegations that the trial was grossly unfair.

The decision is reminiscent of the Supreme Court decision in U.S. v. Korematsu, which upheld the internment of 110,000 Japanese Americans during World War II based on a secret report that the government claimed showed that Japanese Americans on the West Coast were a security risk.  Many years later, historians looked at the now-declassified report and discovered that it showed just the opposite––that the Japanese Americans were not a security risk.  On the basis of this lie, Fred Korematsu, the defendant, had his conviction reversed in the lower courts, and the government has since repeatedly apologized to Japanese Americans for what is widely regarded as one of the worst decisions by the Supreme Court. Now the 2nd Circuit is upholding the conviction of Aref, based on secret briefs, without ever checking to see if the briefs contain false information.

However, not included in the 2255 motion that the 2nd Circuit quashed was the expected official notification from the Department of Justice that Aref was secretly and illegally wiretapped under the NSA program. Such notification has not yet been received by Aref’s attorneys. Attorney General Eric Holder announced on November 15, 2013 that the DOJ will notify defendants––including those in past cases––if evidence derived from NSA surveillance was used in their cases. The New York Times reported on January 17, 2006 that warrantless NSA surveillance was used in Aref’s case, but over the years Aref and his attorneys have not been able to obtain any more information about it, since the information was classified. A still-controversial part of Aref’s 2006 trial featured the government’s use of secret evidence, which to date has never been seen by the defense, the jury, or Aref himself. Defense attorneys believe that this secret evidence included NSA surveillance––and that the information derived from this NSA evidence is false. Whether receipt of such notification from the DOJ will open a new avenue for resubmission of Aref’s 2255 motion remains unknown.

So far, DOJ has notified three terrorism defendants (in Colorado, Oregon, and Brooklyn) that NSA surveillance evidence was used in their trials. In the Oregon case, sentencing for the defendant was postponed indefinitely by the district judge pending resolution of how such surveillance figured into the trial––which could take years.

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