When Anti-Terror Justice Runs Amok

ON AUGUST 15, PETE SEDA CAME HOME. He had written to the U.S. Attorney in Eugene, Oregon, advising him that he would arrive in Portland at 11:25 a.m. on Lufthansa Flight 425. I was waiting for Seda in the international lobby at the airport, as was Associate Press reporter William McCall. There was also a photographer, studying an AP file photo of “Pete Seda”—an Anglicized version of the Iranian name Pirouz Sedaghaty.

At 12:30, Tom Nelson, the Portland lawyer who had flown to Frankfurt a day earlier to accompany Seda on his trip back home, walked out alone. The FBI had arrested Seda and confiscated his luggage before he could get to the lobby. He was being called a “flight risk.” An odd designation, Nelson said, for a man flying home to face prosecution.

As Seda was being escorted to a van for the two-hour drive to Eugene, in San Francisco plaintiffs’ attorneys were trying to persuade a three-judge panel to proceed with a civil suit related to one of Seda’s colleagues at the Al-Haramain Islamic Foundation in Oregon. It was an interesting coincidence: the intersection of a criminal proceeding in which the federal government is pursuing a small Islamic outreach organization as if it had collaborated with Osama bin Laden, and a civil proceeding in which attorneys representing the same organization’s lawyers and director were in federal court with proof they had been the subjects of illegal warrantless surveillance by the National Security Agency.

Seda was at the center of the criminal proceeding. “Pete wants to have his day in court,” Nelson said. “I think the federal government has really overreached in this case, and they will continue to overreach. They have let him know they will go at him with hammer and tongs. They told him that.” Nelson had told me earlier that Seda remained out of the country for four years because he knew he would be prosecuted as if he were a terrorist, even though he was only charged with a regulatory violation of the law. The prosecution of the case alone would entail his spending months in jail. A week later, in federal court in Eugene, Assistant U.S. Attorney Chris Cardani claimed that the non-profit Islamic center Seda had directed had been linked to Osama bin Laden. Cardani was backed up by Assistant U.S. Attorney John Ray, FBI agent Dave Carroll, IRS investigator Colleen Anderson and author/attorney Daveed Garenstein-Ross.

Garenstein-Ross was the rare combination of fact witness and expert witness. Born a Jew, he’d converted to Islam and worked for Seda, before becoming disillusioned once more and finding a new religious identity in the Baptist Church. Along the way, he’d gone to law school, clerked for a federal judge and written a book about his spiritual peregrinations and the discontents of life as a Muslim. His unique CV qualified him for work among an emerging class of specialists Zbigniew Brzezinski calls “terrorism entrepreneurs.” Karin Immergut, the U.S. Attorney for the District of Oregon, made the two-hour trip down from Portland to monitor the day-long proceeding against Seda.

Tom Nelson’s “hammer and tongs” prediciton was begining to look like an understatement. The hearing recalled what Sheikh Mohamed Abdirahman Kariye had told me two years earlier, after he was completely cleared of terrorism-related charges that began with an FBI team shutting down a concourse of the Portland airport to arrest him.

“I’m thinking, come on now, who am I, O.J.?” said Kariye, a Somali imam who presides at a large Portland mosque. Legs in shackles and dressed in Lane County jailhouse greens, the diminutive Seda looked like another unlikely O.J.

E-MAIL FROM OSAMA?—Seda is a naturalized American citizen who was born in Iran. He had left the U.S. four years earlier, before he was indicted for money laundering and tax fraud charges related to $151,000 the government alleges was sent to Chechen separatists fighting the Russian army in 2000. Specifically, Seda was charged with making a false statement on a form that non-profit organizations are required to file annually with the IRS. In his filing, he had indicated that the $151,000 that went to Chechnya was used to purchase an Islamic worship center in Missouri.

The Al-Haramain Foundation was indicted along with Seda. Also indicted was Soliman Al-Buthi, a Saudi civil servant who served as Al-Haramain’s director and took the $151,000 out of the United States. At about the time of the indictments, the government also placed Al-Haramain on a list of specially designated global terrorists.

Tom Nelson represents Al-Buthi. He also represents Al-Haramain, which operated an Islamic worship and community center in Ashland, Oregon. At the Portland airport, Nelson told me that the charges against Seda have nothing to do with terrorism. He described them as the sort of transgressions that usually result in a fine or revocation of an organization’s non-profit status.

Yet the government’s argument at the detention hearing in Eugene was focused on terrorism. Cardani claimed that Seda had distributed to prisoners a radical translation of the Koran. “The Noble Qur’an,” he’d said, urged Muslims to engage in jihad. The government also presented an e-mail from the address [email protected], found on a website whose domain name had been purchased by Seda. The e-mail, which had been copied to Seda, referred to the website www.laden.s5.com (which as I write includes a photo of a smiling bin Laden and an ad for the Outback Steak House.)

There was an account of Seda, his son, and an unknown Caucasian male watching a video of Mujahedeen in Chechnya, and a great deal of discussion of Whahabbism, the extreme fundamentalist version of Islam. Cardani also told the judge that fourteen Al-Haramain offices in foreign countries have been identified by the United States and the United Nations as global centers of terrorism.

Seda’s attorney Lawrence Matasar presented evidence that the Noble Qur’an is available from the local library and Amazon.com and is widely circulated because it is distributed at no cost by the Saudi embassy. Seda, he said, is no more responsible for the misdeeds of the foreign Al-Haramain offices than “Cardani is responsible for the misdeeds of the U.S. government.” The Al-Haramain international offices are independent but loosely associated with Al-Haramain of Saudi Arabia, which until it was shut down in response to pressure from the U.S. government distributed between $30 million and $80 million a year in Saudi-government and private donor money. An expert witness for Seda testified that it was laughable even to think that Osama bin Laden, who hasn’t used a cell phone since the nineties, is posting e-mails on Islamic chat sites.

Cardani compared Seda to convicted terrorist José Padilla, describing him as a “danger to the community of Southern Oregon” and “a danger to the general U.S. population.” The judge was demonstrably uncomfortable with the government’s focus on religious terrorism while the defendant was merely being charged with technical and regulatory violations. “To say the least, this has been a very unusual detention hearing,” he said. On September 10, he ordered Seda released on bond, declaring that he was not a flight risk. The government appealed, and on September 11, District Court Judge Michael Hogan overruled the magistrate judge’s ruling. Seda remains in jail pending at least one more hearing.

THE “GLOBAL TERRORIST” LIST—The process by which Al-Haramain was placed on the U.S. “global terrorist” list is the focus of the civil lawsuit that was being argued in San Francisco on the day Pete Seda landed in Portland. In the wake of the September 11 attacks, the U.S. Treasury’s Office of Foreign Assets Control (OFAC) began to discover that some Islamic charities had funneled money to terrorists. Al-Haramain offices in Somalia, Bosnia, Indonesia, Kenya, and Pakistan were listed by OFAC as Specially Designated Global Terrorists. Al-Haramain of Saudi Arabia was not, because then-Secretary of the Treasury Paul O’Neill said it was “dedicated to promoting Islamic teachings.”

It wasn’t until February 2004 that the Treasury Department turned its attention to Al-Haramain in Oregon, freezing all its assets pending an investigation under a provision of the USA PATRIOT Act. OFAC agents prohibited Al-Haramain from using the frozen assets to hire attorneys. And they provided Al-Haramain with 154 pages of unclassified documents that would determine the fate of the organization. Al-Haramain’s attorneys, paid with other monies, found nothing in the unclassified documents that provided evidence of terrorist activity or links to terrorist organizations. They were, however, concerned when OFAC referred to additional “classified documents” linked to Al-Haramain “that are not authorized for public disclosure.”

Yet the lawyers could only speculate on the charges the organization would face. “It’s a process without due process,” said one lawyer involved in Al-Haramain’s defense. David Cole, a Georgetown Law Center professor who would later join Al-Haramain’s legal team, told the Washington Post that the government had failed to define what a Specially Designated Global Terrorist is. “If the category has no definition, then how would a group who challenges the definition know what it is? It is whatever the government says it is.”

Al-Haramain’s attorneys assumed that the charges would be related to money the organization had sent to Chechnya in 2000. They provided OFAC with copies of legal agreements between the Saudi and Russian governments. These agreements authorized a Saudi agency to distribute humanitarian aid to Chechen refugees driven from their homes by Russia’s suppression of the Chechen separatist movement. The lawyers also provided an accounting of $180,000 that had been sent to the Soviet Joint Committee for Relief in Kosovo and Chechnya.

In September 2004, OFAC named Al-Haramain a Specially Designated Global Terrorist. Also designated was Soliman Al-Buthi, the Saudi who’d served as a director of Al-Haramain. Al-Buthi was also indicted for taking $151,000 out of the country without declaring it. He is an administrator in the Saudi civil service. The Saudi government has barred him from leaving the country to face charges in the U.S.

FEDS OUTSMART THEMSELVES—The government’s designation of Al-Haramain as a terrorist group was not only heavy-handed, it was ham-handed. Three weeks before Al-Haramain was so designated, Washington, D.C., lawyer Lynne Bernabei received an additional seventy pages of documents from OFAC, at 3 p.m. on a Friday afternoon. Bernabei was one of several Al-Haramain attorneys trying to puzzle their way through the designation process. She was ordered to respond to the new material by 9 a.m. the following Monday. Faced with an unreasonable deadline, she photocopied the file and sent copies to the other attorneys working on the case. She also sent copies to Al-Buthi and Seda, both living outside the U.S., and to a Washington Post reporter writing about the designation process.

In mid-October two FBI agents showed up at Bernabei’s office to retrieve classified documents that OFAC had inadvertently included with the seventy-page file sent in August. She turned the material over to the agents and provided them with a list of everyone to whom she had sent photocopied pages. FBI agents visited each law office and the Washington Post to retrieve all copies of the top-secret documents. Borrowing a trick from the sitcom spy Maxwell Smart, the agents warned each party not to remember what he had read in the classified documents. They did not go to the Middle East to retrieve the pages sent to Al-Buthi and Seda.

In December the New York Times broke a story about the National Security Agency’s warrantless surveillance program. Despite the FBI’s warning, Tom Nelson remembered. The documents the agents had retrieved were surveillance logs and transcripts of conversations between Al-Buthi in Saudi Arabia and two American attorneys representing him in Washington. “I wasn’t aware of the significance of the documents until I read the New York Times, and I realized we had a smoking gun and that the NSA had violated attorney-client privilege and the Fourth Amendment,” Nelson said. (And the Foreign Surveillance Intelligence Act.)

Nelson obtained a copy of the top-secret documents, presumably from Al-Buthi in Riyadh. He returned them to the government as a sealed attachment to a lawsuit Al-Haramain filed against President Bush, the director of the NSA and others involved in the warrantless surveillance. The documents were immediately locked in a SCIF—a Sensitive Compartmentalized Information Facility.

“The federal government broke the law,” Nelson said. “If they had a warrant, they would have filed it [with the judge] and that would have been the end of it. But they engaged in illegal surveillance. They violated attorney-client privilege. Then they took what they got and used it. They used it! In a civil proceeding, and my client never had a chance to defend himself.”

In August 2006 Department of Justice attorneys tried to convince District Judge Garr King in Portland that our national security would be imperiled if he allowed Al-Haramain to use the top-secret documents as evidence. Subjects of the surveillance would change their behavior to avoid it. The public and our enemies would learn about a critical top-secret program. The argument was a hard sell, and the judge wasn’t buying. Even if the FBI ordered everyone to forget everything seen, the subjects of the surveillance were aware they had been under surveillance. The judge reminded the DOJ attorneys that there were several substantial flaws in their argument that the U.S. surveillance program is secret:

• Attorney General Alberto Gonzales had defended the program in public.

• The Justice Department had issued a forty-two-page white paper defending the warrantless surveillance program.

• The president of the United States had defended the NSA program in a nationally televised speech.

The judge ordered the case to go forward, based on evidence he had examined and then locked in a SCIF. He said he would accept affidavits from the lawyers who had read the secret documents, although they would not be made public. His ruling was appealed to the Ninth Circuit in San Francisco, where a skeptical three-judge panel heard oral arguments the day Seda returned home. A decision is pending.

Other parties have filed suit against the NSA’s secret program. In Detroit, a federal judge ruled that the program is unconstitutional. The ruling was overturned because the plaintiffs lacked standing, precisely because they could not prove they had been targeted.

The surveillance logs Judge King ordered locked up give Al-Haramain’s attorneys the standing other plaintiffs have lacked. A statement by an Al-Haramain attorney in district court in Portland explains why the government is going to such great (and absurd) lengths. “We’re not looking to reveal classified documents,” said Jon Eisenberg. “We want a decision on whether the president’s warrantless program is unlawful. That’s our goal here.”