The Second Circuit Court of Appeals has
upheld (at least, for now) a decision in an Albany federal court criminal prosecution allegedly related to terrorism based on evidence that the defense was not allowed to see. The defense suspects that the case is based on warrantless NSA spying which isn't supposed to be admissible in a criminal case (or done at all).
The 2nd Circuit panel basically held that if the trial judge screwed up that it can be dealt with after the defendant is convicted and appeals, and that the New York ACLU isn't a proper party in the criminal case at hand.
The problem with this analysis is that secret orders based on secret evidence hurt more than just a criminal defendant. They also hurt the public interest in knowing what is going on in a case. The harm caused by this just about unprecedented abuse of process goes beyond the fact that it may cause you to be convicted. It compromises the integrity of the court system itself.
And, while it isn't unheard of for orders and evidence to be limited to the prosecution and defense, it highly unusual to allow a case to proceed in a civilian court without defense counsel being able to see what he is arguing against, because the prosecution and judge won't show it to him.
Admittedly, today's jurisdictional ruling does not rule on the merits or eliminate the chance of a favorable ruling down the road for the defendants, but, at the very least, this kind of shadow boxing creates uncertainty that may force a plea bargain based on violations of the defendants rights that they can't count on the court system honoring.
In short, the 2nd Circuit missed yet another opportunity for the federal courts to stop the madness and dropped it in the Friday afternoon news dump to ad insult to injury.