Secret call log at heart of wiretap challenge

In open court and legal filings it's referred to simply as "the Document."

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 a few select federal judges.

The Document, described by those who have seen it as a National Security Administration log of calls intercepted between an Islamic charity and its American lawyers, is at the heart of what legal experts say may be the strongest case against the Bush administration's warrantless eavesdropping program. The federal appeals court in San Francisco plans to hear arguments in the case Aug. 15.

The charity's lawyer scoffs at the often surreal lengths the government has taken to keep the Document under wraps.

"Believe me," Oakland attorney Jon Eisenberg said, "if this appeared on the front pages of newspapers, national security would not be jeopardized."

Eisenberg represents the now-defunct U.S. arm of the Al-Haramain Islamic Foundation, a prominent Saudi charity that was shut down by authorities in that kingdom after the U.S. Treasury Department declared it a terrorist organization that was allegedly funding al-Qaeda.

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.

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 it claimed to be unequivocal proof: the Document.

In 2004, as the Treasury Department was considering whether to include the group on its list of terrorist organizations, Al-Haramain's Washington lawyer, Lynne Bernabei, asked to see the evidence.

That's when, in a case of bureaucratic bungling, Treasury officials mistakenly handed over the call log — which has the words "top secret" stamped on every page — along with press clippings and other unclassified documents deemed relevant to the case.

Six weeks later, the FBI was dispatched to Bernabei's office to retrieve it. But by then she had passed out copies to five other lawyers, a Washington Post reporter and two Al-Haramain directors — al-Buthi and Pirouz Sedaghaty, also known as Pete Seda.

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. 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.

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 lawsuit to go forward with Eisenberg's team forced to rely on their memories of the Document.

Even the laptop computer Eisenberg used to draft legal documents citing the Document is scheduled to be scrubbed clean by government agents Wednesday.

Three judges in the San Francisco-based 9th U.S. Circuit Court of Appeals will now decide whether the wiretapping program authorized shortly after the Sept. 11, 2001, terrorist attacks was illegal.

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 with it and any notes the judges made that are deemed sensitive, according to court documents.

DOJ spokesman Dean Boyd declined to comment on the case or the handling of the Document.

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.

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.

The 9th Circuit has scheduled arguments for Aug. 15 on the administration's request to dismiss the Al-Haramain case and another lawsuit by telecommunication customers who allege logs of their calls were illegally accessed by the NSA.

In court papers filed last year, then-National Intelligence Director John Negroponte and NSA Director Lt. Gen. Keith Alexander urged a judge to toss the case because to defend it would require the government to disclose "state secrets" that would expose the United States' anti-terrorist efforts.

Last month, the Bush administration reiterated its position in court documents submitted to the appeals court urging dismissal of the case.

"Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged," the filing stated.

More than 50 other lawsuits pending before a San Francisco federal judge are awaiting the appeals court's ruling in the two cases, but none have the kind of hard evidence Al-Haramain purports to have — through its lawyers' recollections of the call log — that warrantless eavesdropping of American citizens occurred.

"The biggest obstacle this litigation has faced is the problem showing someone was actually subjected to surveillance," said Duke University law professor Curtis Bradley.

But he said the Al-Haramain lawsuit "has a very good chance to proceed farther than the other cases because it's impossible for the government to erase (the lawyers') memories of the document."