Secret call log at heart of wiretap challenge

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."

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