Apr 25, 2008 2:46 PM

NSA-Spied-On Lawyers Get Day in Court and New Yorker Profile

First the Feds investigate a Saudi charity in Oregon, wiretap the director and two of the group’s lawyers, try to designate it a terrorist group and accidentally give the group proof of the wiretapping. Then years later when Al Haramain’s American lawyers sue, claiming they were wiretapped without warrants, the feds seek to bury the […]

First the Feds investigate a Saudi charity in Oregon, wiretap the director and two of the group's lawyers, try to designate it a terrorist group and accidentally give the group proof of the wiretapping. Then years later when Al Haramain's American lawyers sue, claiming they were wiretapped without warrants, the feds seek to bury the case with a nearly all powerful litigation tool known as the 'state secrets' privilege, raising profound questions about whether the president is accountable to the law.

In short, if lawyers with documents proving that government secretly wiretapped their conversations with a client can't get their day in court, is it even accurate to think that any law applies to the president during terror-time?

Patrick Radden Keefe is the latest to tackle the fascinating case of Al Haramain v. Bush, penning a New Yorker tale filled out with stories of briefs so secret that even the feds even shredded the banana peel left after the plaintiffs' lawyer finished writing his argument in a Justice Department secret room.

Under normal circumstances, Seda, Buthi, and the lawyers representing Al Haramain would never have known that the Treasury Department, in its investigation, had relied on telephone conversations secretly intercepted by the N.S.A. Yet, according to court filings by attorneys who have seen it, the document that the department mistakenly sent Bernabei described intercepted conversations between Buthi, in Riyadh, and two of Al Haramain’s attorneys, Asim Ghafoor and Wendell Belew, in Washington. The document was dated May 24, 2004; the conversations took place in March and April—just as the Treasury Department was investigating the charity.
On February 28, 2006, Al Haramain filed suit against the Bush Administration in Oregon federal court, claiming that the government had violated the First, Fourth, and Sixth Amendments, along with the Foreign Intelligence Surveillance Act of 1978, which makes it illegal for the government to use wiretaps in the U.S. without a warrant. The warrantless-wiretapping program has been challenged in numerous lawsuits over the past two years, many brought on behalf of journalists and activists, who make sympathetic plaintiffs but struggle to demonstrate that the government actually listened to them. In 2006, a federal court in Michigan found warrantless surveillance unconstitutional, but an appeals court overturned the ruling, concluding that the plaintiff, the A.C.L.U., could not prove that any individual had been targeted by the program.
In the classified document, Al Haramain appeared to have the proof that the other cases lacked.

The story's only real failing is that it dismisses this week's hearing in the case as a mere "technical" issue, and essentially concluding that the case is basically dead because of a November appeals court ruling that said the state secrets privilege did apply to the document and thus could not be used.

That's not quite right. In fact, Haramain is likely, in THREAT LEVEL's estimation, to remain one of the key legal battles in the warrantless wiretapping drama.

Instead of dismissing the case, the appeals court sent the case back down to district court judge Vaughn Walker, who has been handling all of the suits against the telecoms that allegedly helped the government spy on Americans without getting warrants.

The appeals court gave Walker the task of deciding a very important Constitutional question – does a law passed by Congress – one intended to let people challenge the legality of secret surveillance – trump the state secrets privilege – a common law privilege that can only be invoked by the government.

If so, then there may be a way for Vaughn Walker, a Bush 41 appointee, to force the government to show him, in a secret room, all the information about the wiretapping of Al Harmain, and he can decide whether the surveillance was legal or not.

Given Walker's libertarian leanings and the questions he threw at Justice Department lawyers in Wednesday's hearing, I wouldn't be placing bets on the government's side.

The AP's Paul Elias tackled the same story last year, and my take on the Haramain case is here.

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