[NYTr] Secret Call Log: Challenge to the DomesticWiretap Program

[All the News That Doesn't Fit]

sent by MichaelP (activ-l)

AP via FindLaw - Aug 5, 2007
http://news.lp.findlaw.com/ap/o/51/08-06-2007/00730039dfc80e0c.html


SECRET CALL LOG - CHALLENGE TO DOMESTIC WIRETAP PROGRAM

by PAUL ELIAS
Associated Press Writer

(AP) - SAN FRANCISCO-In open court and legal filings it is referred to 
simply as "the Document."

Federal officials claim its contents are so sensitive to national
security that it is stored in a bombproof safe in Washington and viewed
only by prosecutors with top secret security clearances and a few
select federal judges.

The Document, described by those who have seen it as a National
Security Administration log of calls intercepted between an Islamic
charity and its American lawyers, is at the heart of what legal experts
say may be the strongest case against the Bush administration's
warrantless eavesdropping program.  The federal appeals court in San
Francisco plans to hear arguments in the case Aug. 15.

The charity's lawyer scoffs at the often surreal lengths the government 
has taken to keep the Document under wraps.

"Believe me,"  Oakland attorney Jon Eisenberg said, "if this appeared
on the front pages of newspapers, national security would not be 
jeopardized."

Eisenberg represents the now-defunct U.S.  arm of the Al-Haramain
Islamic Foundation, a prominent Saudi charity that was shut down by
authorities in that kingdom after the U.S.  Treasury Department
declared it a terrorist organization that was allegedly funding
Al-Qaida.

He and his colleagues sued the U.S. government in Portland, Oregon's 
federal court, alleging the NSA had illegally intercepted telephone
calls without warrants between Soliman al-Buthi, the Saudi national who
headed Al-Haramain's U.S. branch, and his two American lawyers, Wendell
Belew and Asim Ghafoor.

Unlike dozens of other lawyers who have sued alleging similar
violations of civil liberties stemming from the Bush administration's
secret terrorism surveillance program, Eisenberg's team had what it
claimed to be unequivocal proof: the Document.

In 2004, as the Treasury Department was considering whether to include
the group on its list of terrorist organizations, Al-Haramain's
Washington lawyer, Lynne Bernabei, asked to see the evidence.

That is when, in a case of bureaucratic bungling, Treasury officials 
mistakenly handed over the call log - which has the words "top secret" 
stamped on every page - along with press clippings and other
unclassified documents deemed relevant to the case.

Six weeks later, the FBI was dispatched to Bernabei's office to
retrieve it.  But by then she had passed out copies to five other
lawyers, a Washington Post reporter and two Al-Haramain directors -
al-Buthi and Pirouz Sedaghaty, also known as Pete Seda.

Still, the lawyers were unsure what they had been given until December 
2005, when The New York Times published a story exposing the Bush 
administration's warrantless wiretapping program.  The attorneys
involved in the Al-Haramain case suddenly realized that the call log
was proof their clients had been eavesdropped on, and they sued.

An Oregon judge soon ordered Eisenberg and his colleagues to turn over
all copies, but in an odd legal twist, U.S. District Court Judge Garr
King allowed the lawsuit to go forward with Eisenberg's team forced to
rely on their memories of the Document.

Even the laptop computer Eisenberg used to draft legal documents citing 
the Document is scheduled to be scrubbed clean by government agents 
Wednesday.

Three judges in the San Francisco-based 9th U.S. Circuit Court of
Appeals will now decide whether the wiretapping program authorized
shortly after the Sept. 11, 2001, terrorist attacks was illegal.

Each time the judges want to view the Document, a Department of Justice 
"court security officer" hand carries it from Washington to San
Francisco, then returns with it and any notes the judges made that are
deemed sensitive, according to court documents.

Department of Justice spokesman Dean Boyd declined to comment on the
case or the handling of the Document.

Even without the Document itself, legal observers say Eisenberg's case
may have the best chance of succeeding among the many legal challenges
to the wireless wiretapping program, which the Bush administration
discontinued earlier this year.

Belew and Ghafoor, the two lawyers whose calls were allegedly
intercepted by NSA, appear to be the only U.S. citizens with actual
proof that the government eavesdropped on them. They are demanding $1
million each from the federal government and the unfreezing of
Al-Haramain's assets.

The 9th Circuit has scheduled arguments for Aug.  15 on the 
administration's request to dismiss the Al-Haramain case and another 
lawsuit by telecommunication customers who allege logs of their calls
were illegally accessed by the NSA.

In court papers filed last year, then-National Intelligence Director
John Negroponte and NSA Director Lt. Gen. Keith Alexander urged a judge
to toss the case because to defend it would require the government to
disclose "state secrets" that would expose the United States'
anti-terrorist efforts.

Last month, the Bush administration reiterated its position in court 
documents submitted to the appeals court urging dismissal of the case.

"Whether plaintiffs were subjected to surveillance is a state secret,
and information tending to confirm or deny that fact is privileged,"
the filing stated.

More than 50 other lawsuits pending before a San Francisco federal
judge are awaiting the appeals court's ruling in the two cases, but
none have the kind of hard evidence Al-Haramain purports to have -
through its lawyers' recollections of the call log - that warrantless
eavesdropping of American citizens occurred.

"The biggest obstacle this litigation has faced is the problem showing 
someone was actually subjected to surveillance," said Duke University
law professor Curtis Bradley.

But he said the Al-Haramain lawsuit "has a very good chance to proceed 
farther than the other cases because it's impossible for the government
to erase (the lawyers') memories of the document."