Why Abuse of State Secrets Privilege Is So Terrifying

A distressing writeup by a lawyer from the Al-Haramain Islamic Foundation Inc. v. Bush case — a suit against the President (rather than the telecom companies) over warrantless wiretapping. And yet, a strangely inspirational one, suggesting that intelligent men of good will and a judicial system that still seems to work can work miracles sometimes: Suing George W. Bush: A bizarre and troubling tale

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.

[…] 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.

[…] 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. Because of Judge King’s prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.

[…] We went forward without Nelson, 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. We could print out drafts but couldn’t take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty’s supervision. She would personally give the judges their copies, which nobody else — not the court clerks, not the judges’ staff attorneys — would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty’s safe was “our” copy.

Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become “derivatively classified” and thus unlawful for us to possess. I 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.

Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. […]

[…] It’s hardly a secret that the Al-Haramain plaintiffs were spied upon — it’s been reported in Salon, the New York Times, the Washington Post, the Los Angeles Times and the New Yorker magazine, among others. The reality is that the Al-Haramain case doesn’t threaten national security; it threatens only the “unitary executive” theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly — without a court ruling on whether the president of the United States has broken the law.

We, the members of the Al-Haramain legal team — Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Tom Nelson and I — cannot let that happen without fighting to the end.