SAN FRANCISCO (AP) — In open court and legal filings it’s referred to simply as “the Document.”
Federal officials assert that its contents are so sensitive to national security that it is stored in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and a few select federal judges.
The Document, described by those who have seen it as a National Security Agency (NSA) log of calls intercepted between an Islamic charity and its American lawyers, is at the heart of a case against the Bush administration’s warrantless eavesdropping program. The federal appeals court in San Francisco plans to hear arguments in the case Aug. 15.
The charity’s lawyer scoffs at the often surreal lengths the government has taken to keep the Document under wraps.
“Believe me,” Oakland attorney Jon Eisenberg said, “if this appeared on the front pages of newspapers, national security would not be jeopardized.”
Mr. Eisenberg represents the now-defunct U.S. arm of the Al Haramain Islamic Foundation, a prominent Saudi charity that was shut down by authorities in that kingdom after the U.S. Treasury Department declared it a terrorist organization that was funding al Qaeda.
He and his colleagues sued the U.S. government in Portland, Ore., federal court, claiming the NSA had illegally intercepted telephone calls without warrants between Soliman al-Buthi, the Saudi national who headed Al Haramain’s U.S. branch, and his two American lawyers, Wendell Belew and Asim Ghafoor.
In 2004, as the Treasury Department was considering whether to include the group on its list of terrorist organizations, Al Haramain’s Washington lawyer, Lynne Bernabei, asked to see the evidence.
That’s when, in a case of bureaucratic bungling, Treasury officials mistakenly handed over the call log — which has the words “top secret” stamped on every page — along with press clippings and other unclassified documents deemed relevant to the case.
Six weeks later, the FBI was dispatched to Miss Bernabei’s office to retrieve it. But by then she had passed out copies to five other lawyers, a Washington Post reporter and two Al Haramain directors — Mr. al-Buthi and Pirouz Sedaghaty, also known as Pete Seda.
Still, the lawyers were not sure what they had been given until December 2005, when the New York Times published a story exposing the Bush administration’s warrantless wiretapping program. The attorneys involved in the Al Haramain case suddenly realized that the call log was proof their clients had been eavesdropped on, and they sued.
An Oregon judge soon ordered Mr. Eisenberg and his colleagues to turn over all copies, but in an odd legal twist, U.S. District Court Judge Garr King allowed the suit to go forward with Mr. Eisenberg’s team forced to rely on their memories of the Document.
Three judges in the San Francisco-based 9th U.S. Circuit Court of Appeals will now decide whether the wiretapping program authorized shortly after the September 11, 2001, terrorist attacks was illegal.
Each time the judges want to view the Document, a Department of Justice “court security officer” hand-carries it from Washington to San Francisco, then returns with it and any notes the judges made that are deemed sensitive, according to court documents.
Even without the Document itself, legal observers say Mr. Eisenberg’s case may have the best chance of succeeding among the many legal challenges to the wiretapping program, which the Bush administration discontinued earlier this year.
Mr. Belew and Mr. Ghafoor, the two lawyers whose calls were intercepted by NSA, appear to be the only U.S. citizens with actual proof that the government eavesdropped on them. They are demanding $1 million each from the federal government and the unfreezing of Al Haramain’s assets.
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