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              NSA Snooped on Lawyers Knowing Spying Was Illegal, Suit Charges
Wednesday, July 11th, 2007
By Ryan Singel The government’s surveillance of two attorneys challenging the NSA’s warrantless wiretapping of Americans took place partly during a period in which the top secret program operated without the approval of the Bush administration’s own Justice Department, according to a newly filed court document. The lawsuit, known as al-Haramain vs. United States, is the only one of more than 50 challenges to the program where the plaintiffs claim to have proof that they were the targets of the warrantless spying, based on a top secret document that had been briefly provided to them in a government paperwork snafu. For that reason, the lawsuit was already seen as the most resistant to government efforts to protect the program. The allegation that some of the surveillance took place when the program wasn’t authorized by the Justice Department may further complicate the government’s defense. “Part of our surveillance occurred when the Attorney General advised the president that the program was illegal,” says plaintiff attorney Jon Eisenberg. “That deprives them of the defense they didn’t know it was illegal.” According to Congressional testimony taken earlier this year, on March 10th, 2004, top Justice Department lawyers and White House officials held a tense showdown over the NSA spying program at the bedside of then-attorney general John Ashcroft in an intensive care unit. Ashcroft’s resolve left the president’s program without the Justice Department’s stamp of approval for about two weeks, as the White House scrambled to tweak the program to meet Ashcroft’s demands. Attorneys in the al-Haramain case say the plaintiffs were spied on in March and April of 2004, during a period that encompassed that two week interregnum. Already closely watched, the al-Haramain case became even more important to civil libertarians on Friday, when the U.S. 6th Circuit Court of Appeals dismissed a separate challenge by the ACLU, finding that the journalists and lawyers suing had no “standing” to sue the government, because they had no evidence they were specifically eavesdropped upon by the NSA. While non-binding on other federal appeals courts, the 2-1 decision casts doubt on the prospects of the more than 50 suits against the government and telecoms now consolidated in federal courts in California, and gives the issue of standing new prominence. According to the decision, Americans can’t sue to stop the secret government program unless they can prove they were secretly spied on. And since the program is classified, potential litigants have no recourse to get that proof from the government through legal process. Plaintiffs Wendell Belew and Asim Ghafoor may be the only Americans capable of clearing that substantial legal hurdle. The two American attorneys worked with the al-Haramain Islamic Foundation in 2004 when the Ashland, Oregon-based charity was under federal investigation for ties to terrorism. Belew was one of several lawyers trying to keep al-Haramain off a U.S. Treasury Department watch list — an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department’s Washington D.C. headquarters across the street from the White House. In August 2004, a Treasury Department official accidentally included a classified log of Belew and Ghafoor’s conversations with Soliman al-Buthi, a Saudi-based director for the charity. The FBI later retrieved copies of the documents from the charity’s lawyers and a Washington Post reporter, but copies sent overseas to charity directors were never recovered. Lawyers for Belew and Ghafoor re-obtained a copy of the document shortly after The New York Times revealed the existence of the spying program, and then filed suit in 2006. The document is now being held in a secure facility in San Francisco. For its part the government admits that it accidentally turned over the very secret file to the charity’s lawyers, but argues that the case should be dismissed because the very nature of lawsuit involves “state secrets.” The Justice Department also argues that the phone log could have been created by wiretap approved by a secret court or by a foreign government. An Oregon district court judge disagreed with the government and allowed the case to proceed. The government’s appeal of that decision will be heard on Aug. 15 in the U.S. 9th Circuit Court of Appeals in San Francisco. The government will also be arguing that day for the dismissal of a high-profile lawsuit against AT&T by the Electronic Frontier Foundation for the telecom’s alleged illegal cooperation in the spying. In the wake of the 6th Circuit decision, the fate of civil libertarians’ challenge to the spy program may rest on the a-Haramain case, according to Eisenberg. “We’re the last case standing,” Eisenberg says. “If we aren’t permitted to show standing, no one will be.” Have Your Say: NSA Snooped on Lawyers Knowing Spying Was Illegal, Suit Charges Please read our posting guidelines before posting. Alternatively you can discuss this report here. Related News
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