Al-Haramain Islamic Foundation May Have Best Case Againt Government for Warrentless Wiretapping

In open court and legal filings it's referred to simply as ''the Document,'' and 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 very few select federal judges.^[1] “The Document,” has been described by those who have seen it as a National Security Administration log of calls intercepted between an Islamic charity and its American lawyers, and it is at the heart of what legal experts say may be the strongest case against the Bush administration's warrant-less eavesdropping program.^[2] The federal appeals court in San Francisco plans to hear arguments in the case Aug. 15.^[3]

Federal attorney Jon Eisenberg, the charity's lawyer, thinks the often surreal lengths the government has taken to keep the Document under wraps are ridiculous, ''believe me, if this appeared on the front pages of newspapers, national security would not be jeopardized,'' he asserted.^[4] Eisenberg represents the now-defunct U.S. arm of the Al-Haramain Islamic Foundation, a prominent Saudi charity that was shut down by Saudi authorities after the U.S. Treasury Department declared it a terrorist organization that was allegedly funding Al-Qaida.^[5]

He and his colleagues sued the U.S. government in Portland, Ore.'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.^[6]

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 they claimed was, “the Document.”^[7] They obtained it in 2004, from the Treasury Department. The U.S. Treasury was considering whether to include the group on its list of terrorist organizations and Al-Haramain's lawyer asked to see the evidence.^[8] So the Treasury officials mistakenly handed over the “the Document,” which has the words ''top secret'' stamped on every page, along with press clippings and other unclassified documents deemed relevant to the case.^[9] Once the Government realized what they had done – albeit six weeks later – the FBI was dispatched to retrieve it; by copies had been passed out to five other lawyers, a Washington Post reporter and two Al-Haramain directors.^[10]

Still, the lawyers were unsure what they'd been given until December 2005, when The New York Times published a story exposing the Bush administration's warrantless wiretapping program.^[11] 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.^[12]

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 suit to go forward with Eisenberg's team forced to rely on their memories of the Document.^[13] 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 home with it and any notes the judges made that are deemed sensitive, according to court documents.^[14]

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.^[15] 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're demanding $1 million each from the federal government and the unfreezing of Al-Haramain's assets.^[16]

Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here, and here.

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^[1] Paul Elias, Secret call log at heart of wiretap challenge, Associated Press Newswire, August 6, 2007, available at LEXIS, News Library, Wire News Services File.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.
^[14] Id.
^[15] Id.
^[16] Id.