The only remaining case challenging warrantless wiretapping during the Bush administration, Al-Haramain v. Bush, has survived another attempt by the Department of Justice (DOJ) to have it dismissed because it claims key evidence cannot be used without threatening national security. On Feb. 27, 2009 the U.S. Court of the Appeals for the Ninth Circuit rejected DOJ’s request to stay a Jan. 5 ruling a federal District Court that allows the judge to view and consider the contents of the contested classified document to determine if the Al-Haramain Islamic Foundation (Al-Haramain) can proceed with its lawsuit.

The DOJ position has disappointed opponents of warrantless surveillance and created the impression that the Obama administration is adopting the Bush/Cheney view of secrecy and executive power. The next steps in the case are unclear, since DOJ has submitted new documents meant to correct “inaccuracies” in past filings.

Case Background

The case was filed on behalf of the Oregon-based charity and two of its U.S. lawyers in February 2006, based on a series of events in 2004. It started when the attorneys, Wendell Belew and Asim Ghafoor, were representing Al-Haramain as one of the defendants in a suit filed by victims of the 9/11 attacks. In August 2004 they obtained documents from the Department of Treasury (Treasury) that included one indicating their telephone conversations with Al-Haramain board member Soliman al-Buthi, who was in Saudi Arabia, had been wiretapped. Six weeks later, after realizing its error, the government sent FBI agents to retrieve the document. However, two Al-Haramain officials in Saudi Arabia retained their copies.

Surveillance without a warrant would violate the Foreign Intelligence Surveillance Act (FISA), which requires intelligence agencies to apply to a special court for authority to conduct surveillance of foreign powers or their agents, if there is probable cause to believe the information cannot be obtained through normal investigative methods. The complaint also alleges violations of the Constitutional requirement of separation of powers, the First Amendment’s guarantee of the right to petition the government for redress of grievances (by impairing their ability to get legal advice), and due process and undue search protections in the Fourth and Sixth Amendments. It also alleges violation of the International Covenant on Civil and Political Rights.

A copy of the document was filed with the original complaint in the case. The government then asserted that because the document is classified, it is subject to the “state secrets privilege” and cannot be used as proof in court. The states secret privilege arose from a 1953 Supreme Court decision and provides that the government can withhold classified evidence in a civil suit, even if it means the case must be dismissed.

Because the document is classified, U.S. persons, including Al-Haramain’s attorneys, cannot reveal its contents without violating the Espionage Act of 1917. However, in a July 2008 blog post on Salon.com, Al-Haramain attorney Jon Eisenberg said “we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys…” He goes to describe progress of the case from there as “a bizarre journey” and “a tale directly from Government Secrecy Wonderland.”

Al-Haramains’ attorneys have argued that the document is not a secret because they have seen it. In addition, the warrantless surveillance program was revealed by the New York Times in December 2005. The presiding judge ordered the document to be held in the FBI’s Sensitive Compartmented Information Facility where he could have unrestricted access to it. Al-Haramain’s lawyers were not granted access, but told they could use their clients’ memory of its contents to argue that they have standing to sue.

The suit cannot proceed unless the plaintiffs can show there is reasonable cause to believe they have been injured, or have “standing.” For standing purposes FISA defines an “aggrieved party” as the “target of an electronic surveillance” or one “whose communications or activities were subject to electronic surveillance.” (50 USC 1801(k)) Nearly four dozen other cases challenging the legality of NSA’s warrantless surveillance program have been dismissed for lack of standing, because the plaintiffs were unable to produce the necessary evidence to demonstrate the privacy rights of U.S. citizens had been violated.

DOJ continued to argue that the Al-Haramain case should be dismissed because of the state secrets privilege, appealing to the Ninth Circuit Court of Appeals. In November 2007 the court sent the case back to the District Court to determine whether FISA’s provisions protecting “aggrieved persons” supersedes the state secrets privilege. In July 2008 the District Court held the FISA provisions govern, but required Al-Haramain to show it was an aggrieved party using non-classified evidence. Al-Haramain then filed an amended complaint using public record statements of various government officials to show it was targeted for warrantless surveillance. DOJ moved to dismiss and Plaintiff’s filed discovery motions to proceed with the case.

Treasury designated Al-Haramain as a supporter of terrorism in 2004, effectively shutting it down by freezing its assets. In a separate case, Al-Haramain has challenged the constitutionality of the designation process, saying it deprives charities of an opportunity to contest the basis of the designation. In November 2008 a federal court agreed, ruling that the process violated basic due process rights. The judge also ruled that the definition of “material support” of terrorists is constitutionally vague. The judge ordered further proceedings on the consequences of the due process violation.

The Jan. 5, 2009 Ruling by the District Court Allows Judge to View Document, Attorneys to View Judge’s Orders

The Jan. 5, 2009 District Court ruling said Al-Haramain’s amended complaint “recites in considerable detail a number of public pronouncements of government officials about the Terrorist Surveillance Project (“TSP”)” and “a sequence of events pertaining directly to the government’s investigations of Al-Haramain Oregon.” These included an October 2007 speech by FBI Deputy Director John S. Pistole to the American Bankers Association and American Bar Association that was posted on the FBI website. In it he said the FBI used surveillance in connection with Treasury’s 2004 investigation of Al-Haramain.

DOJ had argued that the court could only allow Al-Haramain’s suit to proceed if the government admitted to the surveillance, which it has not done in court filings. The court disagreed, saying it must interpret FISA in a way that does not make the process for aggrieved parties superfluous. To do this, it said Al-Haramain’s non-classified evidence must establish a reasonable inference that the surveillance occurred in order to have standing to proceed to trial. DOJ said this approach would “open a floodgate of litigation”, but the court said this is unlikely, given the specific nature of non-classified evidence that must be filed by any plaintiff.

The court found that Al-Haramain had met the burden of showing evidence of surveillance, saying “The court declines to entertain further challenges to plaintiff’s standing….Plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss….to find Plaintiffs showing inadequate would effectively render those provision of FISA without effect, and outcome the court is required to attempt to avoid.”

However, contrary to erroneous press reports that indicated the court would now allow Al-Haramain’s attorneys to view the document (which they have already seen, and attached to the initial court filing), the court ordered that:

• The court itself will review the document ex parte and in camera, meaning in closed session and without the presence of Al-Haramain attorneys

• Based on this review, the court will determine whether the document establishes that Al-Haramain and its attorneys were subjected to surveillance “not authorized by FISA”

• Because classified material procedures require the court’s orders from this process to remain under seal, DOJ must provide for Al-Haramain’s attorneys to obtain security clearances to enable them to read sealed orders and participate in the case by “reading and responding to the court’s orders.” Otherwise, plaintiffs would be denied due process.

The judge gave DOJ until Feb. 13 to comply with the order. On Feb. 11, DOJ requested leave to file an interlocutory appeal to the Ninth Circuit. The court denied the motion and ordered DOJ to file information on how it would comply by Feb. 27. On Feb. 14 the San Francisco Chronicle reported that DOJ had denied security clearances to Al-Haramain’s attorneys, despite the fact that they passed FBI checks, saying they did not need to see the material.

DOJ immediately appealed back to the Ninth Circuit, requesting a stay of the District Court order. Al-Haramain opposed this action.

Feb. 27, 2009 Order Denies Appeal, Next Steps Uncertain

On Feb. 27 the appeal was denied and the case was sent back to the District Court to proceed under the Jan. 5 order. A spokesman for DOJ, Charles Miller, said that the office would not comment on the ruling. However, following the appeals court ruling, the DOJ filed an emergency appeal notifying Judge Walker that the government “is committed to the discretion of the Executive Branch, and is not subject to judicial review” and “plaintiffs’ counsel are not entitled to access the classified information in question.” Such an action has been deemed by critics as a breach of the Constitutional separation of powers by the executive branch. However, this position does not address the substance of the Jan. 5 order, which did not require the document to be given to Al-Haramain’s attorneys.

In what may be a more significant development, on March 6 Al-Haramain attorney Jon Eisenberg revealed in anotherSalon.com blog posting that DOJ lawyers filed a public document in the court notifying the judge that previous DOJ filings contained “an inaccuracy” that “cannot be set forth on the public record.” Eisenberg says “It appears that high officials in the Bush administration asserted a falsehood or falsehoods in their previous secret filings with the court, which the Obama administration is attempting to keep secret. What could that “inaccuracy” be? We haven’t a clue, because…..it’s secret!”