July
9, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District
Court in California made a ruling particularly worthy of the nation's
attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case
in the epic battle over warrantless spying inside the United States,
Judge Walker ruled, effectively, that President George W. Bush is a
felon.
Judge Walker held that the president lacks the authority to
disregard the Foreign Intelligence Surveillance Act, or FISA -- which
means Bush's warrantless electronic surveillance program was illegal.
Whether Bush will ultimately be held accountable for violating federal
law with the program remains unclear. Bush administration lawyers have
fought vigorously -- at times using brazen, logic-defying tactics -- to
prevent that from happening. The court battle will continue to play out
as Congress continues to battle over recasting FISA and possibly
granting immunity to telecom companies involved in the illegal
surveillance.
The story of how Al-Haramain's lawyers negotiated the journey thus
far to Judge Walker's ruling -- a team of seven lawyers that includes
me -- sheds light on how much is at stake for the Bush administration
and the country. It is a surreal saga, involving a top-secret document
accidentally released by the government, a showdown between Bush
lawyers and a federal judge, the violent destruction of a laptop
computer by government agents, and possibly even the top-secret
shredding of a banana peel.
Call me Alice -- because this is a tale directly from Government
Secrecy Wonderland, the bizarre and unnerving adventures of suing
President Bush for apparently violating a federal law. I'll swear under
penalty of perjury that what follows is true and correct. Otherwise,
you might not even believe it.
The secret document
FISA requires a warrant for electronic surveillance inside the U.S.
for intelligence gathering. President George W. Bush secretly violated
FISA for nearly six years, starting shortly after the terrorist attacks
of 9/11. FISA makes those violations felonious and provides for civil
liability to the victims. I am one of seven lawyers in Oregon and
California representing three of those victims in Al-Haramain Islamic
Foundation Inc. v. Bush, a civil lawsuit against the president.
The plaintiffs are Al-Haramain -- a defunct Islamic charity based
in Oregon -- and two lawyers who represented Al-Haramain in 2004 during
proceedings by the Treasury Department's Office of Foreign Assets
Control (OFAC) to declare Al-Haramain a terrorist organization, the primary consequence of which was to freeze its assets. (This
effectively put the organization out of business.) Of the four dozen
lawsuits challenging various aspects of Bush's warrantless electronic
surveillance program, the Al-Haramain case is unique because we have
proof that our clients were actually wiretapped and thus can satisfy
the legal requirement of "standing," or grounds to sue -- meaning we
can show they were victims of the unlawful conduct for which they are
suing. Nobody else has been able to produce such proof.


Our proof is a top-secret classified document, which the government
accidentally gave to Al-Haramain's lawyers in August of 2004. We call
it "the Document." It appeared in a stack of unclassified materials
that the lawyers had requested from OFAC. Six weeks later, after the
government realized its blunder, FBI agents personally visited each of
the lawyers and made them return their copies of the Document. But the
agents made no effort to retrieve copies that the lawyers had given to
two members of Al-Haramain's board of directors, who lived outside the
United States.
I can't publicly reveal what's in the Document because, well, it's
a secret. I would be committing a crime -- a violation of the Espionage
Act of 1917 -- if I were to do so. But we assert the Document as proof
of allegations we have made that in March and April of 2004 the
National Security Agency conducted warrantless electronic surveillance
of attorney-client communications between a representative of
Al-Haramain and two of its attorneys, and that in May of 2004 the NSA
gave logs of those surveilled communications to OFAC.
The FBI vs. the judge
Along with the complaint (the formal pleading that starts a
lawsuit), which we filed in February of 2006 in the Oregon federal
District Court, we submitted the Document. The government's first
response was to try to seize the Document from the court. On March 17,
2006, as we were holding our first all-hands meeting of the Al-Haramain
legal team in Portland, we received a telephone call from a Department
of Justice attorney, advising us that FBI agents were en route to the
federal District Court building to confiscate the Document. We
immediately lodged a protest with the assigned judge, Garr King, who
scheduled an emergency telephone conference with him and all counsel.
The FBI agents retreated.
During the emergency hearing, DOJ attorney Anthony Coppolino
demanded that the Document be turned over to the FBI for storage in a
top-secret repository called a Sensitive Compartmented Information
Facility, or SCIF. To my astonishment, Judge King responded: "What if I
say I will not deliver it to the FBI, Mr. Coppolino?" A clash of
constitutional powers was brewing. Agents of the executive branch were
threatening to invade the files of the judicial branch. The judge was
resisting, almost daring them to.
It was the executive branch that blinked. After a pause, Coppolino
said: "Well, your Honor, we obviously don't want to have any kind of a
confrontation with you; we want to work this out." We all agreed that
the Document would be held in a nearby SCIF to which Judge King would
have free access.
This was the beginning of a bizarre journey that has not yet ended.
Since then, for nearly two and a half years, we have been attempting to
use the Document to confirm our clients' standing to sue under FISA and
thus test the legality of President Bush's warrantless surveillance
program. More broadly, we want the courts to discredit the so-called
unitary executive theory of presidential power, which holds that the
president has exclusive authority over matters of national security and
may disregard laws like FISA that impose checks on presidential power.
First, however, we have had to get past a major obstacle used by the
Bush administration to stand in our way.
The state secrets privilege
The state secrets privilege, which is rooted in a 1953 Supreme Court
case, allows the government to refuse in civil lawsuits to disclose
classified evidence that is a state or military secret. In extreme
cases, where the very subject matter of the lawsuit is secret, the
lawsuit may be thrown out entirely.
Soon after the Document's place of reposit was resolved, the
government asked Judge King to throw out our lawsuit pursuant to the
state secrets privilege, a tactic used aggressively by the Bush government. We opposed that request, arguing that the
Document isn't a secret any longer, since we and our clients have seen
it. The government attorneys insisted that the Document is still a
secret no matter who knows about it, and further insisted that the
warrantless surveillance program itself remains secret -- never mind
that the New York Times revealed the program in December of 2005 and
soon thereafter the president publicly admitted its existence.
By this time, in a burst of healthy paranoia, we had destroyed all
our copies of the Document, and the government wouldn't give us access
to the copy held in the SCIF. What would Judge King do? It's no small
thing for a judge to take on the president in matters of national
security. Judge King came up with a compromise: In a ruling issued on
Sept. 7, 2006, he denied the government's request, but also denied us
access to the copy in the SCIF. Instead, he said, we could proceed to
demonstrate standing by filing secret affidavits describing the
Document from memory.
Laptop lunacy
The government lawyers appealed Judge King's ruling to the 9th
Circuit Court of Appeals. But they blundered: They failed to file an
immediate request to suspend the lower court proceedings that Judge
King had authorized -- our showing of standing with secret affidavits
describing the Document from memory. For two months we quietly worked
on our written showing. By the end of October, having completed most of
the drafting, all we had left to do was prepare our secret affidavits
describing the Document from memory, along with a short supplemental
secret brief explaining how the affidavits established standing. On
Oct. 27, 2006, I flew to Portland from my home in Oakland, laptop
computer in hand, to finish the work with co-counsel. The Oregon
attorneys prepared the secret affidavits; I wrote the supplemental
secret brief on my laptop. Three days later, we filed our documents
with the district court.
The government attorneys were enraged. We'd caught them off guard.
They wrote to Judge King and requested an immediate hearing, arguing we
had prepared our secret papers and taken them to the courthouse without
complying with CIA directives that require certain top secret documents
to be "carried only in approved containers by authorized couriers" and
"transmitted electronically only through 'specially designated and
accredited communications circuits secured by an NSA-approved
cryptographic system and/or protected distribution systems.'"
In fact, we'd only done what Judge King had said we could do. In a
responding letter to the judge, we also pointed out that CIA directives
don't apply to us because we aren't CIA employees. Nevertheless, in
another moment of fear, we destroyed our drafts and notes for the
secret filings. We no longer had copies of the secret documents we had
filed.
During a short hearing, Judge King absolved us of wrongdoing but
ordered that, in the future, we would have to confer with the DOJ
attorneys before preparing secret filings. At the end of the hearing,
the government attorneys demanded that we relinquish any electronic
versions of the secret documents we had filed. The judge ordered all
counsel to confer on this, too, and "see what you can work out." These
two orders set the stage for some of the most bizarre experiences of my
29-year legal career.

Next page: I wondered whether the portion of my brain that remembers the Document
was also "derivatively classified," making its presence in my skull
unlawful