A case coming up before the 9th Circuit Court of Appeals may be the best chance for civil liberties lawyers to challenge the government's warrantless domestic surveillance program, attorneys say.
Earlier this month, the 6th Circuit Court of Appeals in Ohio dismissed a challenge to the so-called Terrorist Surveillance Program because the plaintiffs, a group of lawyers, professors and journalists, could not show they had actually been put under government surveillance.
If the court's reasoning is followed by other courts, it could doom the dozens of other similar pending cases where plaintiffs have no hard evidence that they were spied on under the top secret government program.
But, in one case in Oregon, lawyers say they have actual proof that the government listened in on their clients' phone calls without a warrant, providing a chance to have the courts decide whether the surveillance program is unconstitutional.
"This case presents the best chance of a court evaluating the legality of the surveillance program," said Curtis Bradley, a Duke University law professor and former State Department lawyer who studies national security law. "It may turn out that this is the only case that will be a vehicle for reviewing whether the government complied with" the Constitution and other laws governing eavesdropping.
The surveillance program, authorized by President Bush in 2002, allowed the National Security Agency to monitor communications between U.S. residents and people in other countries with suspected ties to al Qaeda. The top secret program was revealed by The New York Times in 2005.
Al-Haramain Islamic Foundation, a now-defunct Islamic charity that the government says has ties to al Qaeda, says in court papers that the government accidentally gave it a highly classified document that shows the government monitored calls between the foundation's directors, who were overseas, and two of its lawyers in the United States. Those lawyers, Wendell Belew and Asim Ghafoor, are also plaintiffs in the case.
Lawyers and the plaintiffs would not discuss the contents of the document, which is being held in a secure FBI facility in Portland, but Al-Haramain's court filings suggest that it is a National Security Agency phone log of those conversations.
Though the document is being kept secret, the trial court judge plans to allow the plaintiffs to discuss their memories of the document as evidence to show that they were illegally placed under surveillance, which the government has argued would jeopardize national security.
If upheld on appeal when the 9th Circuit hears the case next month, the Al-Haramain case may force more information about the top secret spy program into the public view and may force courts to consider whether the program is constitutional.
Al-Haramain's lawyers say theirs is the only case in the country challenging the surveillance program where the plaintiffs have evidence that they were spied on. The American Civil Liberties Union, which lost the recent 6th Circuit case, has not decided whether it will appeal to the Supreme Court.
"Our case could end up the only game in town," said Jon Eisenberg, an attorney for the plaintiffs. "This could be the last case standing."
The government has gone to uncommon lengths to protect the secrecy of the surveillance program, both in Al-Haramain and in other cases. It persuaded the trial judge in the Al-Haramain case to place the secret document in a Secure Compartmentalized Information Facility at the FBI office in Portland.
The government is now trying to prevent the court from using Al-Haramain's lawyers' memories of the document as evidence that they were put under warrantless surveillance.
"The level of secrecy in this case strikes me as extraordinary," said Nancy Marder, a Chicago-Kent College of Law professor who specializes in litigation secrecy. "It has sort of a Kafkaesque air to it. You can't see certain documents. You can't recall certain documents, You can't use the documents that might exist."
Justice Department lawyers declined to comment on the case. A department spokesman referred questions to the government's court filings, which say that the court papers in the case contain top secret "sensitive compartmented information." That information requires special procedures to protect it, the government argues.
The case revolves around a piece of paper, referred to in court records only as "The Document."
According to Al-Haramain's lawsuit, in May 2004, the National Security Agency gave the U.S. Treasury Office of Foreign Asset Control "logs of conversations" between Belew and Ghafoor and Al-Haramain's directors.
In August of that year, the Treasury Office accidentally gave a top secret document to Lynne Bernabei, a lawyer for Al-Haramain, which is listed by the government as a terrorist organization with ties to al Qaeda.
The document, included with a stack of other, unclassified documents, showed that the government allegedly monitored conversations between Al-Haramain's directors and lawyers, court filings say.
Bernabei then gave the document to the agency's other lawyers and two of its directors — before the existence of the domestic eavesdropping program was publicly known and apparently before anyone realized the importance of the document.
The next month, the FBI asked for the document back. It appears that everyone who was asked either returned or destroyed the document, and in some cases gave the bureau computers to be "scrubbed."
Belew said two FBI agents told him to forget about the whole thing. "They asked me to attempt not to refresh my recollection about it, to sort of forget the contents of the document," he said.
After the warrantless surveillance program was revealed, Al-Haramain, Belew and Ghafoor sued in federal court in Oregon in February 2006, asking for more than $1 million in damages. Along with the lawsuit, lawyers filed a sealed copy of the document. They have not said how they obtained it, but court records say that the FBI did not try to get the document back from the group's directors in Saudi Arabia.
Eisenberg said that a few weeks after the case was filed, government lawyers called to say FBI agents were on their way to the court house to take possession of the document from the judge.
Eventually, after Judge Garr King balked, the document was placed in a Secure Compartmentalized Information Facility at the FBI office in Portland.
King ultimately ruled that Al-Haramain's lawyers could not see the document again, but he allowed them to file affidavits describing their recollections of it. Those memories could be enough evidence to show that the plaintiffs were under surveillance and to allow the courts to decide whether the program is unconstitutional.
Eisenberg said the government then told him that he was violating CIA directives by discussing the document in court filings. "It's been a game of intimidation," Eisenberg said.
Justice Department lawyers declined to comment on the case. A spokesman referred questions to the government's court filings.
When the 9th Circuit hears the case next month, it will have to decide whether the state secrets privilege, which allows the government to stop courts from hearing military and state secrets, prevents Al-Haramain's lawyers from even using their recollections of the secret document to show that they have standing to sue.
If the government prevails, the case will be dismissed.
In court filings, the government argues that the case cannot go to trial without forcing the government to confirm or deny whether Belew and Ghafoor were spied on — a fact, the government contends, that could jeopardize national security. The Justice Department also says the subject matter of the case is a state secret that must be kept out of public view.
A ruling that Al-Haramain is able to sue, the government argues, would itself disclose classified information because it would reveal that the plaintiffs were subject to surveillance under the spying program.
Bradley called dismissing the case because of the state secrets privilege "drastic." "They're trying to disqualify any court from reviewing the legality of the program," he said.
"The document is not secret anymore," he said. "They disclosed it to the very people who were being surveilled."