This is perhaps the most intense, perplexing and intriguing legal tale I have read in a long time. I implore whoever (‘whomever’? I can’t tell from my Collins Dictionary for Writers & Editors. And Borders don’t have the Bill Bryson one, dammit!) of you are reading this to read Jon Eisenberg’s account of the background to the case of Al-Haramain Islamic Foundation Inc v Bush. (PDF of the judgment.)
But it’s kinda long, so if you can’t be bothered… here’s an outline of the best bits… which is also kinda long.
Eisenberg is one of the lawyers for the now defunct Islamic charity, and his narrative is about how the US government’s representatives have gone to bizarre extremes to stifle a legal challenge to Bush’s warrantless surveillance activities, which a US federal judge says is criminal, anyway:
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.
The legal battle has so far gone on for some 28 months of interlocutory proceedings because, in order to get the case up, the plaintiffs have to prove they have standing — ground or authority to sue — because they were the victims of the unlawful conduct being alleged in the suit.
In order to legally conduct electronic surveillance inside the U.S. for intelligence gathering, FISA requires law enforcement/surveillance officials to get a warrant. President George W. Bush violated FISA requirements for nearly six years, starting shortly after 9/11, but the act actually makes those violations felonious and provides for civil recourse for the victims.
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.
Doesn’t this feel like a John Grisham novel? But then story starts to resemble tales by Le Carré or Tom Clancy, too.
Unlike other parties trying to sue Bush over illegal warrantless wiretapping, these plaintiffs have proof that they were wiretapped —
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 …
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 …
The Feds were so freaked out about the Document that they almost had a bit of a blue trying to get back the copy that had been filed with the court by the plaintiffs’ lawyers. Ultimately, the judge was allowed to access the Document while it must be kept under high level security, but the plaintiffs’ lawyers aren’t allowed to see it ever again.
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.
The lawyers were directed to draft their arguments concerning the state secrets privilege by “filing secret affidavits describing the Document from memory“. Isn’t that ridiculous? But it got even stranger when Department of Justice attorneys filed two opening briefs in the 9th Circuit Appellate Court on the issue of whether the state secrets privilege required the lawsuit to be thrown out entirely:
One brief was publicly available, to which we would be allowed to file a publicly available responsive brief. The other was filed in secret, under seal, for the judge’s eyes only. The bad news for us was that we would not be permitted to see the government’s secret brief; the (sort of) good news was that we could file our own secret brief in response.
Rebutting arguments you’ve not been allowed to see is a talent that isn’t taught in law school. I consulted Kafka’s “The Trial,” looking for helpful tips, but found none. I tried guessing at what might be in the government’s secret brief and then hazarding a response in our own.
“Oh yeah,” say the Feds. “And another thing…”
Because the Feds were so worked up over the fact the plaintiffs’ lawyers were drafting submissions about the Document, a judge had ordered the parties to “see what you can work out”. The lawyers agreed to what the Feds wanted, and they ended up
drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer — that is, under the auspices and control of our adversary in the legal case.
Anything they wrote down which contained classified information become “derivatively classified” and thus it would be unlawful for the lawyers to possess. Eisenberg says he “wondered whether this meant that the portion of my brain that remembers the Document is also “derivatively classified,” making its presence in my skull unlawful.”
But because of this “derivatively classified” business, all the old drafts produced in the drafting session (in “the San Francisco federal building … on a floor that was strangely deserted … in a small interior room lined with bookshelves that had been completely emptied, except for a few chairs, a large table, a dusty telephone, a laptop computer and a printer”) had to be securely shredded. The banana peel left from Eisenberg’s snack was left by the stack of drafts:
“Here’s everything, even the banana peel.”
Hogarty [the DOJ lawyer] said she would shred the drafts and the banana peel. (She may have been joking about the banana peel, but I couldn’t be sure.)
Also, DOJ officers wiped laptops which had been used to draft earlier submissions (i.e. the ones that weren’t written in the San Fran panopticon):
The situation grew darkly comic. They didn’t have a hammer, so they started debating how to smash the hard drive. I suggested they smack it against the corner of the table that was in the room. That didn’t do much. Hogarty then had an idea to put the thing on the floor and use a table leg on it. [Another officer] put down the hard drive, picked up the table and brought it down several times forcefully. The noise resounded, but the hard drive was impervious. One of the table legs became bent from the procedure. …
I found myself thinking of the Samsonite Gorilla, the TV commercial from the 1970s in which a gorilla stomps on a piece of luggage that just won’t break. I thought: “These people are entrusted with our national security?”
The the sanity of the lawyers arguing the case for the government might also have to be called into question…
What do we know? Really, what do really ever know? Is it what we think we know? No.
My favourite bit of the tale is about how DOJ attorney Thomas Bondy stood at the lectern before three judges of 9th Circuit Court of Appeals and “delivered a mind-boggling rebuttal to our argument that the surveillance of our clients was no longer a secret”:
“They don’t know,” Bondy said. “Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, ‘know,’ they don’t know. What they mean when they say that is that they — although they think or believe or claim they were surveilled, it’s possible they weren’t surveilled … When they say they know, what they mean by that, on their own terms, is that they don’t know.”
Bondy went on to argue “it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled.”
Judge McKeown: The world knows what they think they know, whatever that is that they know.
Bondy: Exactly. And that’s less than actually knowing whether it’s true.
Judge McKeown: Boy, we are really splitting the “knows.”
At this point Judge Michael Hawkins interjected: “Sounds like Donald Rumsfeld.”
Bondy: But your honor, let me be plain. If it’s entirely possible, and I’m not saying one way or the other, obviously —
Judge McKeown: Right, because you don’t yet know.
Bondy: It’s entirely possible —
Judge McKeown: And we can’t know.
Bondy: It’s entirely possible that everything they think they know, just to give one example, is completely false. It’s possible, or maybe it’s partly true.
And so on. If I’d been permitted a reply, I would have quoted from Lewis Carroll — not from “Alice’s Adventures in Wonderland,” but from his poem “Jabberwocky”: “Beware the jubjub bird, and shun the frumious Bandersnatch!“
The next chapter
The appellate court ruled that the Document’s accidental disclosure does not negate the state secrets privilege. Public disclosure of information concerning the Document would still threaten national security if it were used in a law suit. The judicial compromise of allowing the parties to file affidavits about the Document from memory was, determined to be an improper “back door around the privilege.” But the appellate court also made the an order that
Judge Walker [was] to decide whether FISA pre-empts the state secrets privilege in FISA litigation because of provisions in FISA for adjudicating claims under secure and confidential procedural conditions, which would allow our lawsuit to go forward.
On 3 July 2008, Judge Walker “concluded that FISA does indeed preempt the state secrets privilege.” He also addressed the key issue raised by the plaintiff’s lawsuit — the validity of the “unitary executive” theory — and said what they’d been waiting a long time to here:
The president does not have unbridled power to disregard federal statutory law in the name of national security. According to Judge Walker, “the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required.”
But the ruling also sends us back down the rabbit hole once again …
His Honour made a further ruling that because of the peculiar way in which the applicable FISA provisions are drafted, the plaintiffs are not allowed to use the Document to confirm that their clients were wiretapped until they can first make some sort of preliminary showing — using only non-classified information — of “enough specifics” indicating that the clients were wiretapped — a burden Judge Walker suggested might be “insurmountable”:
According to Walker, “if reports are to be believed,” we will have “little difficulty” establishing standing once we are able to use the Document. But we can’t use it yet. At this point, the Document alone just gives us what Walker called “actual but not useful notice” of our clients’ unlawful surveillance. We need something more, from non-classified information, for that “actual” notice to become “useful.”
In other words, we must show that our clients were surveilled before we can show that our clients were surveilled. The irony in this is not lost on Judge Walker, who commented that FISA is “not user-friendly.”
Isn’t that just astounding? Some of the legal bullshit I see everyday is just unbelievably… bullshit; this is just another reason why I struggle to cope in my chosen professional field.
However, some of my faith about that mythical class of being called “good lawyers” has been someone restored.
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