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."