Lawyers Say They Have Evidence of Warrantless Surveillance

 A 'Kafkaesque Air to It'

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 Document'

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.

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