Defending the Ancien Régime

The View from the Oval Office

“When they were in the Senate both Senator Biden and Senator Obama were both very strong critics of the state secrets privilege. Since assuming office, the administration has used the privilege in at least three cases of which we are aware.”

—Andrew Grossman of the Heritage Foundation

“These are controversial cases, and I want to understand why the administration is asserting the state secrets privilege.”

— Democratic Senator Russ Feingold
(San Francisco)

I RETURN TO THE Al-Haramain v. Bush lawsuit for several reasons. For sheer entertainment value, nothing compares. Federal agents who warned lawyers not to remember what they had read in a classified document seen by a dozen people; shredded a banana peel; locked two attorneys in a windowless room where they were required to write, from memory, a brief to be filed with a federal judge; methodically smashed an attorney’s computer as he watched in disbelief. There’s also the uniquely American circumstance that has Eisenberg and Goldberg defending Al-Haramain, al-Buthi and Sedaghaty. And an appellate court judge complaining that the logic of the case reminded him of the writings of Lewis Carroll.

But this is more than Maxwell Smart going Through the Looking Glass. If this lawsuit—filed by attorneys representing a now-defunct Islamic charity in Oregon—pertained only to the transgressions of the Bush-Cheney administration, I would be inclined to move on to something more timely. But the constitutional issues the plaintiffs are asking Judge Vaughn Walker to decide will have as much to do with determining how Barack Obama will govern as with passing judgment on how George Bush ruled.

Al-Haramain’s lead attorney, Jon Eisenberg, turned to those issues as soon as the judge concluded a June 3 hearing in district court in San Francisco. “We will argue the legality of George Bush’s, actually of Dick Cheney’s, doctrine of expansive executive powers,” Eisenberg said. “The question is: are we again going to have three co-equal branches of government?” Arguments on those and other issues resume on September 1.

On June 3 Judge Walker also dismissed dozens of consolidated lawsuits filed by phone company customers who accused their service providers of collaborating with the government in illegal wiretapping. Al-Haramain is now the only show in town. Indeed, it is one of very few lawsuits in the federal court system that offer some hope of resolving the big constitutional question that Eisenberg asked.

The facts informing the suit go back to March 2004, when Soliman al-Buthi, a board member of the Oregon-based Al-Haramain Foundation, spoke at least ten times over the telephone with his lawyer, Wendell Belew. Belew was in Washington, D.C. Al-Buthi was in Riyadh, Saudi Arabia. Neither of the two men had any idea that their conversation was being intercepted by the National Security Agency and forwarded to the FBI and the Office of Foreign Assets Control (OFAC) at the Treasury Department.

In late April of 2004, OFAC’s director wrote to Lynne Bernabei, another lawyer representing Al-Haramain, to inform her that he was considering listing the Oregon charity as a Specially Designated Global Terrorist. In September 2004 OFAC acted, seizing Al-Haramain’s real estate in Oregon and freezing its bank accounts.

The story might have ended there. But someone at OFAC inadvertently mailed Bernabei classified copies of a phone log of intercepts of conversations between al-Buthi and two of Al-Haramain’s attorneys in the U.S. (See Washington Spectator 10-1-07). Because one party was in the United States during these calls, the government would have needed a warrant for its wiretaps to be legal.

JUST TRUST US—The information from the wiretaps was used to list the Oregon charity as a terrorist group, although no one at the organization was allowed to see (or initially was even aware of) the evidence. Information gleaned from the wiretaps was also used to open criminal investigations into al-Buthi and Al-Haramain’s office manager in Oregon, Pete Sedaghaty. Both men are now under indictment.

It was not until the New York Times revealed the Bush administration’s warrantless wiretapping program that Al-Haramain’s attorneys understood the nature of the document that had been mailed to them. They filed suit in federal court in Portland, alleging that in wiretapping their conversations without a warrant, the government ignored Bill of Rights protections and federal law. Copies of the classified document were destroyed, with the exception of one, which was submitted to the federal judge in Portland. The lawsuit was later transferred to San Francisco and consolidated with the wiretapping suits filed against telephone companies.

PRINCIPLES NOT PRINCIPALS—Al-Buthi and Sedaghaty now seem peripheral to the case. Neither of the two men’s names was mentioned in the most recent hearing (in a case that has now dragged on for three years and three months). Wendell Belew and Asim Ghafoor, the two American attorneys who were subjected to illegal wiretapping, are also out of the picture. The Al-Haramain Islamic Foundation and Multicultural Association of Southern Oregon exists only in the archives of the Oregon secretary of state. The lawsuit has moved from principals to principles.

For two years the case pivoted on access to the classified document. It alone could establish standing—proof that the plaintiffs had been harmed and therefore had a reason to be in court. Department of Justice (DOJ) attorneys insisted that even allowing Al-Haramain lawyers to read the document in the judge’s chambers represented a grave threat to national security.

The government’s position was straightforward. The state secrets doctrine protected the transcript, without which there was no case.

Judge Walker had ruled that the state secrets doctrine did not apply. Congress had written into the Foreign Intelligence Surveillance Act (FISA) a provision that allowed individuals to sue the government if they were subject to illegal surveillance. The right to sue would be meaningless if the government could sequester all the evidence. But the DOJ lawyers, holdovers from the Bush administration, threatened to retire the secret document, which would have forced the judge into a constitutional standoff with the executive branch.

Last summer Judge Walker cut the Gordian Knot. He told Eisenberg that if he could prove, without using any classified information, that his clients had been subjected to surveillance, the case could advance.

Eisenberg had been Googling and collecting public statements that Bush political appointees had made regarding Al-Haramain. In an amended complaint submitted in July 2008, he used that information to make a compelling case that his clients had been wiretapped. “Public statements,” in this instance, include congressional testimony that specifically refers to the Al-Haramain wiretapping, and FBI Deputy Director John Pistole making a speech at the American Bankers Association, in which he said the agency used surveillance in OFAC’s investigation of Al-Haramain.

Judge Walker is now convinced. At the June 3 hearing he said he’s prepared to make a decision based “only on the evidence in the public record.”

“He evidently believes he can go forward and adjudicate this case entirely without anybody having access to classified information,” Eisenberg said in an interview. On September 1, Eisenberg intends to argue issues that transcend the Al-Haramain lawsuit:

    • the legality of the Terrorist Surveillance Program, by which the Bush administration authorized warrantless wiretapping of American citizens on American soil;

 

    • whether the Constitution allows the president to disregard an act of Congress, in this case the Foreign Intelligence Surveillance Act of 1978; and

 

  • the expansive powers the Bush administration claimed to circumvent constitutional restraints on executive power during time of war.

Eisenberg and his clients may finally get an answer. Judge Walker, a George W. Bush appointee to the federal bench, is running out of patience. “This is a lawsuit, not a career, Mr. Coppolino,” he said on June 3 to the lead attorney from the Justice Department. He also complained from the bench that Coppolino wanted “to hightail it over to the Court of Appeals, where he’s been a couple of times previously.”

If the judge grants Al-Haramain standing on September 1, DOJ lawyers defending the Bush administration’s warrantless wiretapping will find themselves backed into a corner. The burden will shift to them to prove they had a warrant to wiretap Al-Haramain. And for the first time ever, warrantless surveillance of American citizens on American soil will be judged in a federal court.

“If they had a warrant, they would have produced it long ago,” Eisenberg said. “I’ve been telling Tony Coppolino for three years, ‘Show me a FISA warrant. You can do it in the judge’s chambers. Just tell me you have a FISA warrant and I’m gone.'”

WHO MISSED THE MEMO? Until January 20 of this year, Al-Haramain’s attorneys had been arguing that Bush violated the law and didn’t have the power to do what he did.

“The responding party, if they ever responded,” Eisenberg said, “would have been Bush, saying ‘I do have this power.’
“So I’m filing this brief that says President Bush violated the law. President Obama and Eric Holder are going to be in the extremely uncomfortable position of having to decide…. Do we defend what Bush did, or do we concede that it was unlawful?”

As a candidate, Obama was unequivocal. “When I am president, there will be no more illegal wiretapping of American citizens,” he told the Des Moines Register a month before the 2008 Iowa Caucuses. “Two months later, in an interview with Charlie Savage, then at the Boston Globe, Obama said: “Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Obama is now president. The warrantless wiretapping program has ended (as far as we know). Yet a party who was subjected to unlawful and unconstitutional surveillance is in federal court. Thus far, holdovers from the Bush administration are obstructing the resolution of the case, claiming that the fact that two American citizens were subject to surveillance is protected by the “state secrets” doctrine.

OBAMA IN A BIND—”The president’s running away from a lot of things. So this is just one more of them,” Michigan Democrat John Conyers said at a June 4 House committee hearing. “He’s said we’ve got to rein in state secrets privileges…. His administration has also continued pressing an aggressive view of state secrets privileges in the court, adopting arguments perfected by the prior administration.”

A House Judiciary subcommittee chaired by New York Rep. Jererold Nadler held two hearings in June on a bill that would impose restraints on the president and expand the power of federal judges on state secrets.

Nadler’s State Secret Protection Act of 2009 would require judges to read evidence that government attorneys declare off limits.

A similar bill is moving through the Senate. On June 17, Democratic Senators on the Judiciary Committee challenged Attorney General Eric Holder’s continued defense of Bush-era state secrets cases.

“I’ve made no bones of the fact that I’ve been troubled to see a continuation of the Bush administration’s practice of asserting the state secrets privilege in an attempt to shut down lawsuits,” committee chair Patrick Leahy (D-VT) said to Holder. “Access to the courts for those alleging wrong-doing by the government is crucial.”

Concern that the state secrets privilege is used to shield the government when it breaks the law or engages in embarrassing behavior is as old as the privilege itself. Its modern use can be traced to a lawsuit filed by the families of three civilian contractors killed when an Air Force bomber crashed in Georgia in 1948. The government claimed that the release of the accident report the families needed to make their case would be a security risk. In 1953 the Supreme Court ruled in favor of the government—without ever examining the accident report.

When the report was declassified decades later, it included nothing that would have jeopardized national security. It did reveal that the plane was not prepared to fly, that the crew was hastily thrown together, that no emergency instructions were provided in the pre-flight briefing, and that one of the pilots accidentally shut down one of the aircraft’s engines while another engine was on fire.

The real secret behind the case on which the state secrets doctrine rests is that there were no national security secrets.

Yet Justice Department lawyers defending the government still invoke the Supreme Court’s 1953United States v. Reynolds opinion to deny plaintiffs access to information.

In the Al-Haramain lawsuit, Department of Justice lawyers have argued that the Terrorist Surveillance Program is a state secret—even after the New York Times reported on it, President Bush made a speech defending it, and Attorney General Alberto Gonzales released a report explaining it. Recently, they have argued that even if the Al-Haramain plaintiffs prove, without the use of any classified documents, they were the subject of surveillance, the fact of the surveillance remains a state secret.

That was Bush’s Department of Justice. Phone messages left for Anthony Coppolino were not returned, so it’s hard to say who’s calling the shots now.

But other signs suggest that the Al-Haramain case is Obama administration policy rather than an anomaly. On June 12, Justice Department lawyers challenged a Ninth Circuit Court of Appeals ruling that would have allowed five foreign plaintiffs who allege they were tortured to proceed with their lawsuit. They are suing a private air charter company they claim the CIA used to fly them to sites where they were imprisoned and tortured. The government argued that any lawsuit related to extrajudicial rendition “would pose an unacceptable risk to national security.” In Portland, the government is still fighting a separate lawsuit that would remove Al-Haramain Oregon from the global terrorist list.

POST-POST 9/11 HYSTERIA—Al-Haramain was one of many Muslim organizations caught up in the hysteria that followed the 9/11 terrorist attacks, after a Bush executive order and several provisions of the U.S.A. Patriot Act unleashed the Treasury Department’s Office of Foreign Assets Control. (OFAC’s designated terrorist list today is 435 pages long.)

Georgetown Law professor David Cole is representing Al-Haramain in Portland, in the separate OFAC listing lawsuit. He is encouraged that Obama mentioned the difficulties that Muslim charities face, in the speech he made in Cairo on June 4.

Cole is somewhat optimistic that federal judges are taking a sober look at policies that were put in place in the aftermath of the 9/11 terrorist attacks.

“These decisions were initially challenged when courts, caught up in the panic after 9/11, were giving short shrift to constitutional concerns,” Cole said.

“I think the reality in this whole area is really shocking,” said Cole. “The powers that the executive branch has in this area of law are truly shocking.”