[Infowarrior] - Top Secret: We're Wiretapping You

[Richard Forno]

Top Secret: We're Wiretapping You

http://www.wired.com/news/technology/1,72811-0.html

By Ryan Singel| Also by this reporter
02:00 AM Mar, 05, 2007

It could be a scene from Kafka or Brazil. Imagine a government agency, in a
bureaucratic foul-up, accidentally gives you a copy of a document marked
"top secret." And it contains a log of some of your private phone calls.

You read it and ponder it and wonder what it all means. Then, two months
later, the FBI shows up at your door, demands the document back and orders
you to forget you ever saw it.

By all accounts, that's what happened to Washington D.C. attorney Wendell
Belew in August 2004. And it happened at a time when no one outside a small
group of high-ranking officials and workaday spooks knew the National
Security Agency was listening in on Americans' phone calls without warrants.
Belew didn't know what to make of the episode. But now, thanks to that
government gaffe, he and a colleague have the distinction of being the only
Americans who can prove they were specifically eavesdropped upon by the
NSA's surveillance program.

The pair are seeking $1 million each in a closely watched lawsuit against
the government, which experts say represents the greatest chance, among over
50 different lawsuits, of convincing a key judge to declare the program
illegal.

Belew's bout with the Terrorist Surveillance Program began in 2004, when he
was representing the U.S. branch office of the prominent Saudi Arabian
charity Al-Haramain. Formerly one of the largest charities in Saudi Arabia,
Al-Haramain worked to spread a strict view of Islam through philanthropy,
missionary work and support for mosques around the world.

Federal officials were investigating the Ashland, Oregon, branch of the
group for alleged links to terrorism, and had already frozen the charity's
U.S. assets. Belew was one of several lawyers trying to keep Al-Haramain off
a U.S. Treasury Department watch list -- an effort that sent much paperwork
flying back and forth between the attorneys and the Treasury Department's
Washington D.C. headquarters across the street from the White House.

On Aug. 20, 2004, fellow Al-Haramain attorney Lynne Bernabei noticed one of
the documents from Treasury was marked "top secret." Bernabei gave the
document to attorneys and directors at Al-Haramain's Saudi Arabia
headquarters, and gave a copy to Belew. The document was a log of phone
conversations Belew and co-counsel Asim Ghafoor had held with a Saudi-based
director for the charity named Soliman al-Buthi.

Al-Buthi was a Saudi government employee who volunteered as coordinator for
Al-Haramain's North American branches, including the Oregon branch. In a
telephone interview with Wired News, al-Buthi says he's now general manager
for the environmental department of the city of Riyadh, working on an
anti-bird flu project. He denied having any links to terrorism, now or in
2004. "I feel that Islam is best spread by wisdom not by arms or violence,"
al-Buthi says.

Despite al-Buthi's claims of innocence, al-Buthi and Al-Haramain's American
branch were added to the government's public list of terrorists on Sept. 9,
2004, just weeks after the government turned over the call log to the
charity's attorneys. It's not clear when officials realized they'd given a
highly classified document to an organization they considered terrorist, but
the FBI showed up at Belew's office in October and demanded the call log
back, advising the lawyer not to attempt to remember the document's
contents.

By then, Belew had given a copy of the document to Washington Post reporter
David Ottaway, who had been writing about how the government investigated
and listed individuals and groups suspected of funding terrorism. Ottaway
did not report on the classified call log, and when the FBI called, the Post
dutifully handed over its copy.

That might have been the end of it. But in December 2005 The New York Times
revealed that the government had been spying on Americans' overseas
communications without warrants, and Al-Haramain's lawyers realized why the
FBI had been so adamant about getting the document back.

"I got up in the morning and read the story, and I thought, 'My god, we had
a log of a wiretap and it may or may not have been the NSA and on further
reflection it was NSA," says Thomas Nelson, who represents Al-Haramain and
Belew. "So we decided to file a lawsuit."

The lawyers retrieved one of the remaining copies of the document --
presumably from Saudi Arabia -- and used it to file a complaint in U.S.
District Court in Oregon in February of last year. They sought damages from
the government of $1 million each for Belew and Ghafoor, and the unfreezing
of Al-Haramain's assets, because that action relied on the allegedly illegal
spying.

The lawsuit is poised to blow a hole through a bizarre catch-22 that has
dogged other legal efforts to challenge the Bush administration's
warrantless surveillance.

Since the 2005 Times story, and subsequent acknowledgment of the
surveillance by the Bush administration, some 50-odd lawsuits have sprung up
around the NSA program, taking on the government and various telecom
companies who are allegedly cooperating in spying on their customers,
including BellSouth, Verizon and Sprint.

Justice Department and phone company lawyers have asserted that the
plaintiffs in those cases don't have legal standing to sue, because they
have no proof that they were direct victims of the eavesdropping. At the
same time, the government claims it doesn't have to reveal if any individual
was or was not wiretapped because the "state secrets privilege" permits it
to withhold information that would endanger national security.

The tangible document makes Belew's case uniquely positioned to cut through
that thicket, says Shayana Kadidal, an attorney with the Center for
Constitutional Rights, which represents individuals being held in Guantanamo
Bay. The center is also suing to stop the surveillance, but lacks Belew's
concrete evidence of monitoring -- arguing instead that the possibility of
being monitored hampers its legal work.

"The government's line is that if you don't have evidence of actual
surveillance, you lose on standing," says Kadidal. "Out of all the cases,
this is the only one with evidence of actual surveillance."

That evidence also gives the courts enough to rule immediately on whether
the president had the authority to spy on Belew and Ghafoor without a court
order, said Jon Eisenberg, one of Belew's lawyers. "We know how many times
he's been surveilled," Eisenberg told a judge last month. "There is nothing
left for this court to do except hear oral arguments on the legality of the
program."

The Justice Department isn't ready to concede that the two attorneys were
swept into the NSA's extrajudicial surveillance. "The government has never
confirmed or denied whether plaintiffs were surveilled, much less surveilled
under the Terrorist Surveillance Program," spokesman Dean Boyd wrote in an
e-mail to Wired News.

But if the document is a harmless memo unrelated to NSA surveillance, it's
unexpectedly agitating government spooks.

Soon after the lawsuit was filed, the document was whisked out of the
courthouse and into a Justice Department-controlled secure room known as a
Secure Compartmented Information Facility in Portland, Oregon. According to
government filings, it remains classified top secret and contains "sensitive
compartmented information" -- meaning information that concerns or is
derived from intelligence sources, methods or analytical processes,
according to the defense and intelligence communities' own definition.

Even the lawyers who filed the document with the court are no longer allowed
to see it; instead, they've been permitted to file declarations, under seal,
based on their memory of its contents.

Other aspects of the case also support the plaintiffs' interpretation of the
document. Last year, U.S. District Judge Garr King in Portland examined the
document and read classified briefs filed by the Justice Department. Then he
ordered the government to meet with the plaintiffs to discuss turning over
more documents in discovery. It's not likely the court would have permitted
the case to continue if the evidence didn't, in fact, indicate that the pair
had been under surveillance.

And if the surveillance had been court ordered and lawful, King would have
been obliged to dismiss the lawsuit. Under the Foreign Intelligence
Surveillance Act, or FISA, targets of counter-intelligence or
counter-terrorism surveillance can only sue the government when no warrant
has been issued. Lawyers for Belew and Ghafoor seize on this point. "If
there was a FISA warrant, the whole case would have crumbled on the first
day," Nelson says. "Its pretty obvious from the government's conduct in the
case, there was no warrant."

Justice department lawyers have argued that, even if the pair of lawyers
were monitored, judging the president's authority to do so requires looking
at the specific reasons why the duo were surveilled. And those facts would
be national secrets that would tip off terrorists, so no court can ever rule
on the program.

"This is not to say there is no forum to air the weighty matters at issue,
which remains a matter of considerable public interest and debate, but that
the resolution of these issues must be left to the political branches of
government," Justice Department lawyers wrote in a brief on the case.

But the government has a new, and not necessarily friendly, judicial
audience for its no-judges-allowed argument. In August, a special court
ordered Belew's lawsuit to be consolidated into a single proceeding
comprised of 54 other NSA-related lawsuits, before U.S. District Court Chief
Judge Vaughn Walker in San Francisco.

Walker has presided over the year-old class-action lawsuit brought by the
Electronic Frontier Foundation against AT&T for the phone company's alleged
cooperation with the NSA program. The judge made waves in July when he
issued a landmark ruling that allowed the AT&T case to proceed, despite the
government's claim that the suit must be thrown out because it involved
national secrets. Walker ruled that the state-secrets privilege did not
apply to the entirety of the case, because the government had admitted the
program existed. (Walker recently rejected a motion filed by Wired News
seeking the unsealing of evidence in the case.)

The government has appealed that state secrets decision to the 9th Circuit
Court of Appeals, and asked the judge to put a stop to all 55 cases pending
that appeal. But Walker, a libertarian-leaning Republican, has kept the
cases moving, noting that any decision from the appeals court is likely to
wind through the court system up to the Supreme Court -- a process that
could take years.

Belew's lawsuit, his lawyers submit, is a chance to short circuit that
process entirely.

In a hearing in early February, Eisenberg told Walker that the classified
document sets the Belew case apart from the other cases, because the judge
has enough evidence to decide whether the warrantless surveillance was
illegal, without waiting for the 9th Circuit to decide the state secrets
issue.

"You need only read the statutes to decide, 'Does the president have the
right to do this without a warrant?'" Eisenberg said.

Walker is expected to rule in March on whether to stay the case or set a
hearing date, and the document will likely be moved, under guard, from the
Portland secure facility to San Francisco, where Walker can review it.

In the meantime, the NSA program is undergoing changes.

In a separate lawsuit last August, Michigan U.S. District Court Judge Anna
Diggs Taylor found the NSA surveillance program unconstitutional and illegal
-- a decision that's now under appeal in the 6th Circuit. Facing that ruling
and growing political pressure, in early January, Attorney General Alberto
Gonzales essentially announced the end of the warrantless spying, saying the
NSA program will continue, but would begin getting "innovative" court orders
from the foreign intelligence court.

With the program now reformed, the Justice Department has asked for several
of the lawsuits against the government to be dismissed as moot.

Al-Buthi is now a "specially designated global terrorist," according to the
Treasury Department, and he's under indictment in the United States for
failing to declare $150,000 in travelers checks raised to help Chechnyan
refugees when he last flew out of the country. He told Wired News that he
had always declared money when entering the United States, but wasn't aware
he needed to do the same when leaving. He says he's been interrogated twice
by Saudi officials and cleared of any wrongdoing.