[Infowarrior] - Secrecy Is at Issue in Suits Opposing Domestic Spying

[Richard Forno]

January 26, 2007
Secrecy Is at Issue in Suits Opposing Domestic Spying
By ADAM LIPTAK
http://www.nytimes.com/2007/01/26/washington/26nsa.html?ei=5094&en=b269fa6bc
75f304b&hp=&ex=1169787600&partner=homepage&pagewanted=print

The Bush administration has employed extraordinary secrecy in defending the
National Security Agency¹s highly classified domestic surveillance program
from civil lawsuits. Plaintiffs and judges¹ clerks cannot see its secret
filings. Judges have to make appointments to review them and are not allowed
to keep copies.

Judges have even been instructed to use computers provided by the Justice
Department to compose their decisions.

But now the procedures have started to meet resistance. At a private meeting
with the lawyers in one of the cases this month, the judges who will hear
the first appeal next week expressed uneasiness about the procedures, said a
lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures
threaten the separation of powers, the adversary system and the
lawyer-client privilege.

Justice Department officials say the circumstances of the cases, involving a
highly classified program, require extraordinary measures. The officials say
they have used similar procedures in other cases involving classified
materials.

In ordinary civil suits, the parties¹ submissions are sent to their
adversaries and are available to the public in open court files. But in
several cases challenging the eavesdropping, Justice Department lawyers have
been submitting legal papers not by filing them in court but by placing them
in a room at the department. They have filed papers, in other words, with
themselves.

At the meeting this month, judges on the United States Court of Appeals for
the Sixth Circuit asked how the procedures might affect the integrity of the
files and the appellate records.

In response, Joan B. Kennedy, a Justice Department official, submitted, in
one of the department¹s unclassified filings, a detailed seven-page sworn
statement last Friday defending the practices.

³The documents reviewed by the court have not been altered and will not be
altered,² Ms. Kennedy wrote, and they ³will be preserved securely as part of
the record of this case.²

Some cases challenging the program, which monitored international
communications of people in the United States without court approval, have
also involved atypical maneuvering. Soon after one suit challenging the
program was filed last year in Oregon, Justice Department lawyers threatened
to seize an exhibit from the court file.

This month, in the same case, the department sought to inspect and delete
files from the computers on which lawyers for the plaintiffs had prepared
their legal filings.

The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted
him to conduct unusual research.

³Sometime during all of this,² Mr. Eisenberg said, ³I went on Amazon and
ordered a copy of Kafka¹s ŒThe Trial,¹ because I needed a refresher course
in bizarre legal procedures.²

A federal district judge in the case, Garr M. King, invoked another book
after a government lawyer refused to disclose whether he had a certain
security clearance, saying information about the clearance was itself
classified.

³Frankly, your response,² Judge King said, ³is kind of an Alice in
Wonderland response.²

Questions about the secret filings may figure in the first appellate
argument in the challenges, before the Sixth Circuit, in Cincinnati, on
Wednesday. The three judges who will hear the appeal met with lawyers for
the Justice Department and the American Civil Liberties Union on Jan. 8 in a
judge¹s chambers in Memphis.

³The court raised questions about the procedures the government had used to
file classified submissions in the case and the propriety and integrity of
those procedures,² said Ms. Beeson, associate legal director of the
A.C.L.U., which represents the plaintiffs in the appeal.

³They were also concerned about the independence of the judiciary,² given
that ³the Justice Department retains custody and total control over the
court filings.² Ms. Beeson said.

Nancy S. Marder, a law professor at the Chicago-Kent College of Law and an
authority on secrecy in litigation, said the tactics were really extreme and
deeply, deeply troubling.

³These are the basics that we take for granted in our court system,²
Professor Marder said. ³You have two parties. You exchange documents. The
documents you¹ve seen don¹t disappear.²

A spokesman for the Justice Department, Dean Boyd, said employees involved
in storing the classified documents were independent of the litigators and
provided ³neutral assistance² to courts in handling sensitive information.
The documents, Mr. Boyd said, are ³stored securely and without alteration.²

The appellate argument in Cincinnati will almost certainly also concern the
effects of the administration announcement last week that it would submit
the program to a secret court, ending its eavesdropping without warrants.

In a brief filed on Thursday, the government said the move made the case
against the program moot.

Ms. Beeson of the A.C.L.U. said the government was wrong.

At least one case, the one in Oregon, is probably not moot. It goes beyond
the other cases in seeking damages from the government, because the
plaintiffs say they have seen proof that they were wiretapped without a
warrant.

In August 2004, the Treasury Department¹s Office of Foreign Assets Control,
which was investigating an Oregon charity, al-Haramain Islamic Foundation,
inadvertently provided a copy of a classified document to a foundation
lawyer, Lynne Bernabei.

That document indicated, according to court filings, that the government
monitored communications between officers of the charity and two of its
lawyers without a warrant in spring 2004.

³If I gave you this document today and you put it on the front page of The
New York Times, it would not threaten national security,² Mr. Eisenberg, a
lawyer for the foundation, said. ³There is only one thing about it that¹s
explosive, and that¹s the fact that our clients were wiretapped.²

Ms. Bernabei circulated the document to two directors of the charity, at
least one of them in Saudi Arabia, and to three other lawyers. She discussed
them with two more lawyers. A reporter for The Washington Post, David B.
Ottaway, also reviewed the document.

The full significance of the document was apparently not clear to any
recipient, more than a year before The New York Times disclosed the
existence of the N.S.A. program in December 2005.

The F.B.I. learned of the disclosure almost immediately in August 2004,
Judge King said at a court hearing last year, but made no effort to retrieve
copies of the document for about six weeks.

When it did, everyone it asked apparently returned all copies of the
document. In a statement reported in The Post in March, for instance, Mr.
Ottaway said he the F.B.I. had told him that the document had ³highly
sensitive national security information.²

³I returned it after consulting with Washington Post editors and lawyers,
and concluding that it was not relevant to what I was working on at the
time,² Mr. Ottaway said.

In a sworn statement in June, a lawyer who had the document, Asim Ghafoor,
said the bureau took custody of his laptop computer ³in order that the
document might be Œscrubbed¹ from it.²

The computer was returned weeks later.

In February 2006, the charity and the two lawyers who say they were
wiretapped sued to stop the program, requesting financial damages. They
attached a copy of the classified document, filing it under seal. They have
not said how they came to have a copy.

Three weeks later, the lawyers for the foundation received a call from two
Justice Department lawyers. The classified document ³had not been properly
secured,² the lawyers said, according to a letter from the plaintiffs¹
lawyers to the judge.

As Mr. Eisenberg recalled it, the government lawyers said, ³The F.B.I. is on
its way to the courthouse to take possession of the document from the
judge.²

But Judge King, at a hurriedly convened hearing, would not yield it, and
asked, ³What if I say I will not deliver it to the F.B.I.?²

A Justice Department lawyer, Anthony J. Coppolino, gave a measured response,
saying: ³Your Honor, we obviously don¹t want to have any kind of a
confrontation with you. But it has to be secured in a proper fashion.²

The document was ultimately deposited in a ³secure compartmented information
facility² at the bureau office in Portland.

In the meantime, copies of the document appear to have been sent abroad, and
the government concedes that it has made no efforts to contact people
overseas who it suspects have them.

³It¹s probably gone many, many places,² Judge King said of the document at
the August hearing. ³Who is it secret from?²

A Justice Department lawyer, Andrew H. Tannenbaum, replied, ³It¹s secret
from anyone who has not seen it.²

He added, ³The document must be completely removed from the case, and
plaintiffs are not allowed to rely on it to prove their claims.²

Judge King wondered aloud about the implications of that position, saying,
³There is nothing in the law that requires them to purge their memory.²

Mr. Eisenberg, in an interview, said that was precisely the government
position. ³They claim they own the portions of our brains that remember
anything,² he said.

In a decision in September, Judge King ruled that the plaintiffs were not
entitled to review the document again but could rely on their recollections
of it. In October, they filed a motion for summary judgment, a routine step
in many civil litigations. In a sealed filing, they described the classified
document.

Government lawyers sent Judge King a letter saying the plaintiffs had
³mishandled information contained in the classified document² by, among
other actions, preparing filings on their own computers.

In a telephone conference on Nov. 1, Judge King appeared unpersuaded. ³My
problem with your statement,² he told Mr. Tannenbaum, ³is that you assume
you are absolutely correct in everything you are stating, and I am not sure
that you are.²

Mr. Boyd of the Justice Department said the government ³continues to explore
with counsel ways in which the classified information may be properly
protected without any intrusion on the attorney-client privilege.²