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Secret Sharers

By John Gibeaut

January 2, 2010, 5:39 am CST

Soliman Al-Buthi has never read Franz Kafka’s The Trial. The absurdist novel chronicles the last months in the life of banker Joseph K., who is arrested, hauled into court, condemned and put to death without ever learning the charges against him.

Al-Buthi doesn’t need Kafka. That’s because he’s living a variation of Kafka’s theme in a San Francisco federal courtroom.

Al-Buthi served as a director of an Islamic charity that’s suing the National Security Agency—an intelligence-gathering organization run by the U.S. Defense Department—for eavesdropping on privileged telephone conversations between him and his lawyers during the first half of 2004 without obtaining a warrant.

He knows the government did so because it mistakenly gave the lawyers a log of the conversations in August 2004. The Treasury Department turned it over as discovery in its separate post-Sept. 11, 2001, effort to put out of business Muslim charities and others deemed financial supporters of al-Qaida, the terrorist network responsible for the attacks on the World Trade Center and Pentagon.

The document was stamped “Top Secret” and came with everything but a bow and a gift card.

“The first time I saw it in the mail coming from my attorney, I didn’t know what to do with it,” says al-Buthi, chief of the health department for the city of Riyadh, Saudi Arabia. Al-Buthi helped establish the Ashland, Ore., branch of the Al-Haramain Islamic Foundation, a Saudi-based international charity.

The lawyers, both Americans, at the outset didn’t realize what they were dealing with either.

They finally figured it out in December 2005, when the New York Times revealed a massive warrantless government wiretap program aimed at terrorists. President George W. Bush confirmed the account the very next day. So, along with Al-Haramain, the lawyers sued the government for listening in without asking a judge first.

DISCLOSING SECRETS

It looked like the government had been caught with its pants down, having turned over a key piece of evidence in a lawsuit seeking millions of dollars in damages that also stood a good chance of exposing embarrassing conduct by the officials involved. But after the suit was filed in February 2006, the Bush administration attempted to get a judge to declare the log off-limits.

That’s when the lawyers and Al-Haramain came up against the state secrets privilege, a common-law rule of evidence that effectively allows the government to ask a court to shut down litigation before it starts. The feds often rely on no more than bald assertions that public disclosure of certain evidence would harm national security.

“My initial reaction was that it was a crude attempt to intimidate counsel into not representing certain clients,” recalls lawyer-plaintiff M. Wendell Belew Jr., who practices in Washington, D.C. At the time, Belew and co-plaintiff Asim A. Ghafoor were involved in defending yet another lawsuit, brought by Sept. 11 survivors against a slew of Saudi individuals and organizations that included al-Buthi, the Al-Haramain Islamic Foundation and Osama bin Laden’s brother-in-law.

Bush, in an attempt to assuage public anger over the wiretapping, told the nation in a radio address the program was designed to intercept “international communications of people with known links to al-Qaida and related terrorist organizations.”

Belew and Ghafoor didn’t see it that way.

“We just assumed that the government had a warrant,” recalls Ghafoor, who also practices in Washington.

As plaintiffs themselves, the litigation means something more than warrantless surveillance to Belew and Ghafoor.

“I take the relationship between attorneys and clients very seriously,” Belew says. “That’s a basic component of the Anglo-American justice system. This is not only an important case; it’s an obligatory case for an attorney.”

Bush’s acknowledgment of the program was just the opening act.

“Since then, government officials have made voluntary disclosure after voluntary disclosure about the [wiretapping], selectively coloring in the contours of the surveillance program and even hanging some of it in broad daylight,” 9th U.S. Circuit Court of Appeals Judge M. Margaret McKeown observed in the 2007 decision, Al-Haramain Islamic Foundation v. Bush. The opinion held that the call log was privileged but also concluded that the secrets doctrine did not insulate the government from suit over the program itself. Still, the plaintiffs lacked standing without the document, the appeals panel also held.

Standing remains a key component for San Francisco Chief District Judge Vaughn R. Walker as he considers a government motion to dismiss, as well as a plaintiffs motion for partial summary judgment on the question of whether they were illegally wiretapped.

Government lawyers have been so successful at arguing the national security peril that many judges simply take the government at its word and don’t even bother to review the contested evidence. That usually leaves litigants nowhere to go but home. Proving or defending their cases without crucial evidence can be like playing pin-the-tail-on-the-donkey without the donkey.

Thanks to the government’s bungling, Belew, Ghafoor and al-Buthi may be the only ones in all those cases who can show tangible proof they were wiretapped—if only the government will let them. The rest of the world may never get in on the secret.

Here’s where Kafka comes in. “The process there is surreal,” Belew says. “They don’t tell you what the allegations are. You have to guess. At least if you’re accused of criminal activity, you have a right to know the evidence against you. I don’t think they have any.”

THE ESPIONAGE ACT

Even if the secret document were brimming with relevant evidence, the plaintiffs risked prison under the Espionage Act of 1917 by breathing a word of it in court. The act has been amended several times in the past 92 years; it still proscribes not only acts of espionage but also the dissemination of a wide variety of defense secrets in any form.

The U.S. Supreme Court has considered the government’s privilege twice, the last time in United States v. Reynolds in 1953, when it was formally recognized. In a case brought by survivors of civilians killed in a B-29 bomber crash, the court ruled that judges didn’t have to review the challenged material. The government had claimed the accident report contained secret information about military equipment tested on the flight. The document was finally declassified in 2004, and it contained no such references.

Over the next 47 years, ending in 2000, the government raised the secrets privilege 65 times. In just eight years, however, the Bush administration cranked up its use, invoking it 48 times, according to a report released in September by OpenTheGovernment.org, a Washington-based coalition of consumers, government reform groups, journalists and others trying to roll back government secrecy.

Eight months into President Barack Obama’s administration, Attorney General Eric Holder announced a series of policy changes that raised the level of scrutiny.

The government previously had argued a lower standard of “reasonable danger” to national security. Now, Holder said, the Justice Department will limit invocation of the privilege to cases “only when genuine and significant harm to national defense or to foreign relations are at stake and only to the extent necessary to safeguard those interests.” And while individual agency heads used to decide to invoke the privilege on their own, the Holder policy leaves the last word to the attorney general.

“He is saying, ‘Trust me. I won’t abuse the law like the Bush administration did,’ ” says Oakland, Calif., lawyer Jon B. Eisenberg, who has taken on much of the daily work in the Al-Haramain case, which has been consolidated with 54 similar cases in San Francisco.

Holder’s new procedure, however, excluded Al-Haramain and a handful of other cases filed before the policy’s Oct. 1 effective date. The policy also covers the government’s practice of “extraordinary rendition,” where suspected terrorists were kidnapped abroad, then taken to countries where interrogators could legally torture them.

And though the ABA, the American Civil Liberties Union and other professional organizations and advocacy groups cheered the Holder policy shift, they say it only solves the executive side of the equation. Congress still needs to act, and legislation pending in both houses would force judicial review of evidence supporting state secrets claims and allow courts to punish the government by ruling against it if it refuses to play by the rules. It also would apply to pending cases.

Perhaps most significant, both bills also require the government to substitute equivalent unclassified evidence for privileged material: a version of the document with the secret information deleted or a statement admitting the facts that the privileged evidence may prove. The House version would preclude courts from deciding state secrets questions until the sides have a chance to complete nonprivileged discovery from publicly accessible sources.

“The key is that the court has the power to assess whether the substituted evidence meets the fairness test,” explains Gregory T. Nojeim, National Security and Civil Liberties Committee co-chair for the ABA Individual Rights and Responsibilities Section. Nojeim also works as senior counsel to the Washington, D.C.-based Center for Democracy and Technology, which advocates an open and free Internet. “The other big problem is that the government is seeking to dismiss the cases at the front end without allowing the plaintiff to engage in discovery, which might lead to nonprivileged evidence.”

Similar proposed legislation never made it to a floor vote in either house in 2008, leading some cynics to conclude that Holder rolled out the new Justice policy to blunt enthusiasm for this year’s edition.

“It’s really up to the Obama administration,” says ACLU lawyer Ben Wizner of New York City, lead plaintiffs counsel in the rendition cases. “If they support the legislation, it will pass. If they want Supreme Court review, they’ll probably get it.”

The Justice Department refuses to say whether it supports the current bills or whether it would take the question to the Supreme Court. But with scattershot court decisions and so many cases already pending, few doubt that the Supreme Court ultimately needs to sort this out.

“I’m waiting, as I’m sure many people are, with bated breath to see where the other shoe drops,” says Patricia M. Wald, retired chief judge for the U.S. Court of Appeals for the District of Columbia Circuit and a former member of the International Criminal Tribunal for the Former Yugoslavia. Wald has testified before Congress in support of legislation to codify the state secrets privilege. But she adds that the Holder policy, which replaced no policy at all, may give the Justice Department a leg up with skeptical judges.

“The … more careful a process the administration sets up, the more likely the courts are to give it credence,” she says. That could be what Justice is counting on.

“The policy institutionalizes a judicial process that the government would complete to invoke this privilege,” says department spokeswoman Tracy Schmaler. “As opposed to simply invoking the privilege and filing for a dismissal, this process will require the government to present its case to the court through the submission of substantial evidence.”

Similar to a separate ongoing review of issues that arise under the Freedom of Information Act, the Holder policy memo states that the department won’t support the privilege to defend violations of law, inefficiency or bureaucratic errors, or to prevent embarrassment. But that train already may have left the station in the Al-Haramain case, gauging from the public trail of breadcrumbs and disclosures—intentional and inadvertent—both administrations left behind.

The government’s investigation of the charity wasn’t exactly chock-full of cloak-and-dagger stuff, say the plaintiffs lawyers. It was more like “Spy vs. Spy.”

The government hasn’t filed any criminal terrorism charge against Al-Haramain or its board members. Though it likely has spent millions trying to kick Al-Haramain’s civil case out of court, all it has received for its trouble are assets valued at around $600,000—most of it tied up in Oregon real estate—as well as an income tax evasion charge against secretary Pirouz Sedaghaty and a currency violation charge against treasurer al-Buthi for failing to declare $150,000 in travelers checks he took out of the United States upon his return to Saudi Arabia.

“It’s the Al Capone approach,” says Welches, Ore., lawyer Thomas H. Nelson, who filed the original wiretapping suit. Though Capone was believed responsible for untold murders, tax evasion was what brought down the mobster.

Al-Buthi remains stuck in Saudi Arabia today. He can’t leave because he faces arrest and extradition to the United States if he does.

The government says the money was meant for Muslim rebels fighting in Chechnya. Al-Buthi says it was destined for widows and orphans and he simply was unaware of the declaration requirement.

“I have never heard of anyone being prosecuted under these circumstances, unless there was drug money involved,” Nelson says.

The charity still languishes on life support.

“We’re keeping it alive on a shoestring in the annals of the Oregon secretary of state, in case someone even is around to collect the money if we ever get it,” Nelson says. “They’ve got some $600,000. The government says they’re not taking the money. They’re freezing it. Well, what’s the difference?”

OPENING THE BOOKS

From the beginning of the government’s investigation, Al-Haramain figured the best defense was a good offense. The charity offered to open its books to the government. It offered to cooperate in investigations of other Islamic organizations suspected of supporting terrorists. It later offered to make witnesses available, including al-Buthi, who says his government twice questioned and cleared him regarding the travelers checks.

“They were astonished at this offer,” recalls al-Buthi.

By September 2004, Treasury had jumped all over Al-Haramain with both feet. Citing classified information, it formally declared Al-Haramain a “specially designated global terrorist” organization, with unspecified “direct links” to al-Qaida and bin Laden. It already had handed over the mystery call log the month before. Though they were unsure of the document’s significance, Belew and Ghafoor quickly distributed copies to Al-Haramain officials, members of their legal team and a Washington Post reporter.

About six weeks after the lawyers had received the mystery document, two junior FBI agents showed up at Belew’s office.

“They were very sheepish,” Belew recalls. “They asked if they could have their document back, and I said sure.” Refusal to cooperate can mean a prison sentence under the Espionage Act.

Ghafoor turned over his copies to the agents at a Starbucks near his home. “I didn’t want them coming to my house,” Ghafoor says. “I have computers there with attorney-client stuff on them.” The G-men managed to retrieve all but two copies of the document, which the lawyers had sent to al-Buthi in Saudi Arabia.

“They said, ‘Don’t even think about what you saw,’ ” Eisenberg recalls of the agents’ visit to him. “ ‘Just erase it from your mind.’ ”

Eventually the FBI also got its hands on the lawyers’ computers, so it could wipe them clean of any vestiges of the document. Eisenberg’s aging laptop proved a tough customer for a Justice Department security technician who first declared it dead then asked to destroy the hard drive for good measure. But the technician didn’t have tools, so he improvised by first unsuccessfully smashing the hard drive on a tabletop. Then he tried smashing it with the table leg. That just bent the leg. He finally managed to pry off the cover with some sort of homemade tool, and then scratched up the components, as a supervisor busted the memory board into a million pieces.

After months of haggling, Ghafoor finally agreed to lug two desktop computers to FBI headquarters for a wiping operation that was supposed to last just a day. “I left my computers there for two weeks,” he says.

Still, the lawyers had no idea what the government was up to with the secret log. The guessing game over the document finally ended and the lights clicked on with the 2005 New York Times piece.

A QUESTIONABLE LINK

Ghafoor had represented about 25 clients named as defendants in the Sept. 11 survivors’ suit, including bin Laden’s brother-in-law, Mohammed Jamal Khalifa, who was murdered in Madagascar in 2007, and two clerics said to have inspired the al-Qaida leader. Belew represented a bank he describes as a fringe defendant, as well as taking up some of the public relations duties associated with the litigation. Fellow defendant al-Buthi bankrolled much of the defense.

“Best I can tell, the direct link between Al-Haramain and Osama’s brother-in-law is that they have the same lawyers,” Eisenberg says.

The lawyers enlisted al-Buthi’s help to convince the sometimes-defiant defendants to respond to the survivors’ suit. A default judgment against any defendant would forever link that defendant to al-Qaida, says Ghafoor.

“Right after Sept. 11 … I was approached by all sorts of people,” Ghafoor says. “Several of them were from the 9/11 [survivors] case. They wanted to just ignore it. I said this is wrong. Your name will always be tied to it.”

Other subjects covered in the intercepted calls included payment of fees and potential conflicts that Ghafoor may encounter by representing so many clients. Though they are forbidden from discussing specifics, the lawyers describe the conversations as routine for the most part.

“It should not come as a surprise to the government that this was going on,” Belew says.

Meanwhile, other plaintiffs lawyers were connecting the dots from publicly available evidence in preparation for the wiretapping lawsuit against the government. They say the government practically handed the case to them, with the exception of the key phone log that identifies their clients as surveillance targets.

Attorney General Alberto R. Gonzales ultimately ditched the warrantless approach and started using the Foreign Intelligence Surveillance Act, a 1978 law designed for such situations. Unlike the Bush program, FISA requires a warrant issued by a special court.

But the plaintiffs allege that former Attorney General John Ashcroft and his deputy, James B. Comey, already had told other administration officials, including Vice President Dick Cheney, as early as March 2004 that the warrantless spying was illegal. The plaintiffs also allege that one defendant, FBI Director Robert S. Mueller III, was so concerned that he threatened to resign.

The episode concluded with the now-infamous visit to a gravely ill Ashcroft’s hospital bedside by Gonzales (White House counsel at the time) and Bush Chief of Staff Andrew H. Card Jr. The two unsuccessfully attempted to persuade Ashcroft to reauthorize the program. The program lapsed without his signature.

NO DAY IN COURT

The plaintiffs filed the wiretapping suit in February 2006. Their chief claim alleges violations of FISA and seeks to suppress any evidence seized as a result of the eavesdropping. They also want $1 million each in punitive damages.

Litigating the case against a state secrets claim has been no small thing, especially when it comes to drafting pleadings. Cases with state secrets claims typically come with two sets of briefs—one publicly available in the court file and the other secret, for the judge’s eyes only.

The plaintiffs lawyers had their own workspace for drafting their secret responses to the government’s secret arguments (which they never saw). The government supplied them with a nearly empty, windowless room in the San Francisco federal building, complete with a government computer to work on under the watchful eye of a Justice Department security officer.

The security officer would make sure the court and her superiors received their copies of the defense arguments, and then shredded the leftovers. The lawyers couldn’t take copies of their own briefs from the room.

Although the government has found courts largely favoring state secrets, some of its arguments have had judges scratching their heads. In San Francisco, Judge Walker found it especially strange that the government tried to draw constitutional support under the president’s Article II powers from the case of President Richard M. Nixon and the Watergate tapes—which the Supreme Court forced him to surrender.

Had the judge held on a constitutional issue it could complicate, if not derail, congressional attempts to codify the privilege. But “this hardly counts as authority that the president’s duties under Article II create a shield against disclosure,” Walker wrote in a 2008 decision, In re National Security Agency Telecommunications Records Litigation.

And though some courts are beginning to loosen up, judges historically have been cool to litigants who run up against state secrets claims, which the government can raise either as a party or an intervenor. After Sept. 11, no judge wants to be the one to make the wrong call on whether a certain piece of evidence could endanger national security if released.

Some courts flatly refuse to examine the challenged evidence, allow discovery or permit parties to respond to government assertion of the privilege. That enabled a panel of the 4th District Court of Appeals to make quick work out of tossing Khaled el-Masri’s claim that he was kidnapped and tortured as part of the rendition program.

“After information has been determined to be privileged under the state secrets doctrine, it is absolutely protected from disclosure—even for the purpose of in camera examination by the court,” wrote Judge Robert B. King of the Richmond, Va.-based court in el-Masri v. United States.

Another of ACLU lawyer Wizner’s torture cases, this one in San Francisco, may just give his clients the kind of break they say they need. A 9th Circuit panel on April 28 reinstated a suit that a trial court had chucked because it was rife with state secrets. But in Mohamed v. Jeppesen DataPlan Inc., the appeals court at least opened the door for five men suing a company they say provided planning and logistical support for the rendition program.

While the trial judge dismissed the entire suit as covered by the state privilege, the appeals court ruled the judge must consider the evidence one piece at a time, not wholesale as a vehicle for outright dismissal. Once the court culls the privileged evidence from the rest, the case can proceed unless the excluded material is essential for either side to prosecute or defend its case.

The decision also could provide the most direct route to the Supreme Court. If the 9th Circuit rejects an administration request to rehear the case en banc, it may force Justice to ask the high court for cert instead of risking the unknowns of a trial. Or perhaps a decision against the government at any level would loosen the strings on the settlement pocketbook, something that hasn’t appeared to interest it so far.

“Overtures to the government have been met with a stony silence,” says Al-Haramain plaintiffs lawyer Eisenberg.

Wizner says secrecy may be only a secondary issue, as far as the government is concerned.

“Not a single torture victim has had his day in court,” Wizner complains. “We’re not talking about secrecy. We’re talking about immunity.”