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Subject: A government misstep in a wiretapping case.
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http://www.newyorker.com/reporting/2008/04/28/080428fa_fact_keefe?printable=
=3Dtrue=20
<
http://www.newyorker.com/reporting/2008/04/28/080428fa_fact_keefe?printabl=
e=3Dtrue>
Annals of Surveillance
State Secrets
A government misstep in a wiretapping case.
by Patrick=20
<
http://www.newyorker.com/search/query?query=3DauthorName:%22Patrick%20Radd=
en%20Keefe%22=20
<
http://www.newyorker.com/search/query?query=3DauthorName:%22Patrick%20Radd=
en%20Keefe%22>>=20
Radden Keefe April 28, 2008
Was a classified document proof of warrantless surveillance?
One Friday afternoon in August, 2004, a Washington, D.C., attorney named=20
Lynne Bernabei received a package from the Department of the Treasury.=20
The government was investigating one of her clients, the American branch=20
of a Saudi charity called the Al Haramain Islamic Foundation, which had=20
been active in fifty countries. Al Haramain had come under scrutiny, as=20
had many other Islamic charities, after the attacks of September 11,=20
2001, and Treasury Department investigators believed that Al Haramain=E2=80=
=99s=20
American branch, which was based in Oregon, had connections to Al Qaeda.=20
In response to a request from Bernabei for evidence against her client,=20
the government had turned over two sets of documents, primarily media=20
reports that referred to other branches of Al Haramain. None of the=20
materials demonstrated a direct connection between the Oregon branch and=20
Al Qaeda.
Bernabei asked for any classified evidence the government might have,=20
arguing that it was impossible to rebut evidence that she couldn=E2=80=99t =
see.=20
When a third batch of evidence arrived, that August afternoon, the cover=20
letter noted that the enclosed materials were =E2=80=9Cunclassified,=E2=80=
=9D so=20
Bernabei didn=E2=80=99t give much thought to the last item, a four-page doc=
ument=20
stamped =E2=80=9CTop Secret.=E2=80=9D =E2=80=9CMy impression was that it mi=
ght have been=20
something that was declassified,=E2=80=9D she told me recently.
Bernabei photocopied the materials and forwarded them to the half-dozen=20
clients and attorneys associated with the case. Several weeks later, the=20
Treasury Department concluded its investigation, and declared the Oregon=20
branch of Al Haramain a Specially Designated Global Terrorist entity,=20
citing =E2=80=9Cdirect links=E2=80=9D with Osama bin Laden.
Soon afterward, two F.B.I. agents visited Bernabei=E2=80=99s office and inf=
ormed=20
her that a classified document had accidentally been turned over to her.=20
Bernabei told them that she had received only =E2=80=9Cunclassified=E2=80=
=9D=20
information, but she agreed to retrieve the document from her files.=20
According to Bernabei, one of the agents suggested that as she looked=20
for the document she should try not to think about what it contained. In=20
the following weeks, F.B.I. agents tracked down the copies that she had=20
distributed. One lawyer for Al Haramain had an electronic copy. The=20
F.B.I. asked to purge it from his computers.
Bernabei said that she and her associates did not appreciate the=20
significance of the document, and the government=E2=80=99s efforts to recov=
er=20
it, until December, 2005, when the New York Times revealed that the Bush=20
Administration had authorized the National Security Agency to employ=20
wiretaps inside the United States without first getting a warrant. The=20
document that the Treasury Department had turned over to Bernabei=20
appears to have been a summary of intercepted telephone conversations=20
between two of Al Haramain=E2=80=99s American lawyers, in Washington, and o=
ne of=20
the charity=E2=80=99s officers, in Saudi Arabia. The government had evident=
ly=20
passed along proof of surveillance to the targets of that surveillance,=20
and supplied the Oregon branch of Al Haramain=E2=80=94a suspected terrorist=
=20
organization=E2=80=94with ammunition to challenge the constitutionality of =
the=20
warrantless-wiretapping program.
Well before September 11th, U.S. intelligence agencies had suspicions=20
about the connections between Islamic charities and terrorism. Zakat, or=20
charitable tithing, is one of the five pillars of Islam, a duty for=20
observant Muslims, and, by some estimates, Saudi charities raise four=20
billion dollars a year. They establish mosques and community centers,=20
distribute religious literature, and dispatch clerics to spread=20
Wahhabism, the severe strain of fundamentalist Islam that is the=20
official religion of the kingdom. =E2=80=9CThis is an element of Saudi fore=
ign=20
policy,=E2=80=9D Lee Wolosky, a member of the National Security Council in =
the=20
Clinton and Bush Administrations, told me. =E2=80=9CIt=E2=80=99s very well =
co=C3=B6rdinated.=20
It happens at the highest levels of the Saudi state.=E2=80=9D In 2004, Davi=
d=20
Aufhauser, who as the Treasury Department=E2=80=99s general counsel oversaw=
its=20
counterterrorism efforts after September 11th, estimated that in recent=20
decades the kingdom had spent =E2=80=9Cnorth of seventy-five billion dollar=
s=E2=80=9D on=20
Islamic evangelism.
Al Haramain was established, with help from the Saudi royal family, in=20
1991. Its headquarters were in Riyadh, with offices in foreign=20
countries. Within a few years, the charity was suspected by the C.I.A.=20
of involvement in terrorism. In 1996, a C.I.A. report suggested that a=20
third of Islamic N.G.O.s =E2=80=9Csupport terrorist groups or employ indivi=
duals=20
who are suspected of having terrorist connections=E2=80=9D; it named Al Har=
amain=20
as an example. In 1997, a C.I.A. informant in Nairobi said that the=20
local branch of Al Haramain planned to blow up the U.S. Embassy.=20
According to the Times, a C.I.A. inquiry turned up no evidence of a=20
plot, but after the bombings of the American Embassies in Tanzania and=20
Kenya, the following year, Kenyan authorities ordered Al Haramain from=20
the country. In a trial on the bombings in New York in 2001, prosecutors=20
introduced a collection of business cards that had been seized from the=20
Nairobi home of Wadih el-Hage, an Al Qaeda operative who was eventually=20
convicted for his role. One belonged to Mansour al-Kadi, an Al Haramain=20
official in Riyadh, who was the titular vice-president of the Oregon=20
branch (though he never played an active role there, and no further=20
connection was made between the charity and the bombings).
Aqeel al-Aqil, who was Al Haramain=E2=80=99s director during the nineties, =
told=20
me by e-mail that he could not control aid and donations once they=20
arrived in areas of conflict, such as Bosnia and Chechnya. =E2=80=9CIf you =
give=20
a sack of flour to a needy family,=E2=80=9D he said, =E2=80=9Cyou cannot gu=
arantee that=20
some of their mujahideen sons will not eat some of the bread made of=20
that flour.=E2=80=9D U.S. authorities, however, believed that the charities=
must=20
be held accountable. =E2=80=9CHistorically, Al Qaeda and other terrorist gr=
oups=20
have set up or exploited some charities,=E2=80=9D Stuart Levey, the Treasur=
y=20
Department=E2=80=99s Under-Secretary for Terrorism and Financial Intelligen=
ce,=20
told the Senate Finance Committee earlier this month. =E2=80=9CThose who re=
ach=20
for their wallets to fund terrorism must be pursued and punished in the=20
same way as those who reach for a bomb or a gun.=E2=80=9D
After September 11th, the F.B.I. assigned Dennis Lormel, a veteran=20
financial investigator, to look into how Al Qaeda secured its funding.=20
=E2=80=9CWe latched on to charities immediately,=E2=80=9D he told me. On Se=
ptember 23,=20
2001, President Bush signed an executive order authorizing the Treasury=20
Department to =E2=80=9Cdesignate=E2=80=9D individuals or entities believed =
to be=20
supporting or =E2=80=9Cotherwise associated=E2=80=9D with terrorism, in ord=
er to help=20
shut down what Bush called =E2=80=9Cthe financial foundation of the global=
=20
terror network.=E2=80=9D
Designations amount to a kind of economic embargo: anyone who does=20
business with a designated person risks criminal or civil penalties. The=20
Treasury Department can act more quickly than the police or the F.B.I.,=20
who may take action only after an investigation. By pre=C3=ABmptively=20
freezing a suspect=E2=80=99s assets, =E2=80=9Cthe government does not have =
to watch=20
these dollars continue to flow over a period of months or years as it=20
investigates whether it will pursue criminal charges,=E2=80=9D a department=
=20
spokesman, Andrew DeSouza, told me.
Authorities also need less evidence for a designation than they would=20
for prosecution, and they can rely on evidence that would not be=20
admissible in a criminal trial. Matthew Levitt, who until last year was=20
deputy assistant secretary for intelligence and analysis at the Treasury=20
Department, says that designations involve =E2=80=9Can extremely robust pro=
cess.=20
This is not something that can be done easily or willy-nilly.=E2=80=9D But=
=20
Lormel, who retired from the F.B.I. in 2003, says he would have been=20
=E2=80=9Chard pressed=E2=80=9D to act on some of the material that Treasury=
officials=20
used. =E2=80=9COftentimes, I think they base their evidence on media storie=
s or=20
public-source information, whereas we would never use only that,=E2=80=9D h=
e=20
told me.
In addition, the Treasury Department may use classified evidence that is=20
never disclosed to the designated party, despite an established=20
principle of the American legal system that the accused should have an=20
opportunity to confront evidence against him. Designations can be=20
challenged before a federal judge, but lawyers for the designated party=20
are not shown all the government=E2=80=99s evidence and cannot introduce th=
eir=20
own. Nearly five hundred individuals and groups have been labelled=20
Specially Designated Global Terrorists since 2001; there has never been=20
a successful challenge in court. A designation =E2=80=9Ceffectively denies=
=20
people province over their own property in a largely unreviewable way,=E2=
=80=9D=20
Aufhauser, the department=E2=80=99s former general counsel, told me. =E2=80=
=9CSuch an=20
extraordinary power needs to be exercised with discretion, because it=20
could be constitutionally suspect.=E2=80=9D
Al Haramain was an early target. Foreign branches=E2=80=94including those i=
n=20
Somalia and Bosnia, which, according to officials, had been directing=20
funds to terrorist groups=E2=80=94were the first to be designated. Lormel=
=20
dispatched F.B.I. agents to Ashland, Oregon, to investigate the American=20
branch.
Situated in the Rogue Valley, and surrounded by the dramatic foothills=20
of the Siskiyou and Cascade Mountains, Ashland is a semirural community=20
of some twenty thousand people. Main Street is lined with organic=20
restaurants, coffee shops, and independent bookstores, and locals=20
describe the town as unusually liberal for conservative southern Oregon.
Al Haramain Oregon was run by a longtime Ashland resident named Pirouz=20
Sedaghaty, who is known as Pete Seda. Now fifty years old, he grew up in=20
a secular household in Iran, where his father was a general under the=20
Shah. In 1976, when he was eighteen, Seda followed an older brother to=20
Ashland. He enrolled at the local college, but struggled with reading=20
and writing in English, and never graduated. He drifted into=20
environmental activism, demonstrating against the spraying of herbicides=20
in national forests.
In the nineteen-eighties, Seda went into business as the Arborist,=20
transplanting trees and doing landscaping projects. He became more=20
religious, and converted several friends to Islam, outdoorsmen who=20
dressed like lumberjacks=E2=80=94one Ashland resident described them as =E2=
=80=9CMuslim=20
rednecks.=E2=80=9D He arranged places for Friday prayers, and established a=
=20
nonprofit group, the Qur=E2=80=99an Foundation, which mailed religious=20
literature to Muslims in prison.
Seda became a fixture at peace rallies and multicultural fairs in=20
Ashland. =E2=80=9CHe was the go-to guy if you wanted to have an interreligi=
ous=20
dialogue,=E2=80=9D the Reverend Caren Caldwell, a local Protestant minister=
who=20
has known Seda for twenty years, said. =E2=80=9CI=E2=80=99m not a Muslim mi=
nister,=E2=80=9D Seda=20
told worshippers at a local synagogue, where the rabbi often invited him=20
to speak. =E2=80=9CI=E2=80=99m just a common brother in our community.=E2=
=80=9D He spoke of the=20
importance of monotheism and prayer, and of how terrorism is inimical to=20
the teachings of the Koran. He bought a camel, which he named Mandub=20
(=E2=80=9Cemissary=E2=80=9D in Arabic). He led it down Main Street in the F=
ourth of July=20
parade.
In 1993, Seda met and married an Iranian woman named Laleh; he lived=20
with her and another woman=E2=80=94whom he considered a second wife=E2=80=
=94in Ashland.=20
(Seda has two sons, from an earlier marriage.) That woman eventually=20
left, and a college student named Summer Rife moved in. =E2=80=9CI met Pete=
at=20
an academic presentation he was giving on Islam,=E2=80=9D Rife, who is now=
=20
twenty-seven, said in an e-mail. (Seda=E2=80=99s lawyer advised him against=
=20
talking to me, but Rife agreed to respond to written questions.) She=20
seems somewhat in thrall to Seda. =E2=80=9CIf Pete had the means and=20
opportunity, he could really make a positive difference in the world,=E2=80=
=9D=20
she wrote. =E2=80=9CHe is Nobel Prize material.=E2=80=9D
Soliman al-Buthi, a Saudi who worked for Al Haramain as its treasurer,=20
and who was interested in establishing an American branch, visited Seda=20
in Ashland in 1997. Seda, who was born a Shiite and wore a neatly=20
trimmed beard and fleece jackets, seemed an unlikely partner for Buthi,=20
a Sunni who wore long robes and kaffiyehs. Buthi told me recently that=20
he had heard of Seda=E2=80=99s Qur=E2=80=99an Foundation from a mutual frie=
nd, and that=20
he chose the Rogue Valley, where there were only a few dozen Muslims,=20
because he wanted to =E2=80=9Cstart small.=E2=80=9D Buthi offered to turn S=
eda=E2=80=99s=20
shoestring operation into a well-financed arm of Al Haramain. =E2=80=9CHe t=
old=20
me that he had become a Sunni,=E2=80=9D Buthi said, adding, =E2=80=9CI don=
=E2=80=99t think there=20
would be any co=C3=B6perating with a Shia.=E2=80=9D (Rife told me that Seda=
=E2=80=9Cdoes not=20
believe in sectarianism. We like to say we are Muslim.=E2=80=9D)
Al Haramain Oregon was incorporated in 1999. Aqeel al-Aqil, in Riyadh,=20
was listed as the titular president, and Seda and Buthi as officers.=20
With a hundred and eighty-eight thousand dollars from Riyadh, Seda=20
bought a split-level house to serve as a prayer space for local Muslims=20
and as a warehouse for literature. He hired a young Wake Forest graduate=20
named Daveed Gartenstein-Ross, who had grown up Jewish in Ashland and=20
converted to Islam in college, to assist him.
At times, Seda seemed to be adopting a more militant set of beliefs. =E2=80=
=9CHe=20
said he=E2=80=99d like to go over and fight with the Chechens,=E2=80=9D Abd=
ullah Cabral,=20
a retired truck driver who in 1999 accompanied Seda on the hajj, told=20
me. =E2=80=9CI took it with a grain of salt. You want to leave your busines=
s,=20
two young sons, a couple of wives?=E2=80=9D But by all accounts Seda was=20
devastated by the events of September 11th. He wrote to Al Haramain=20
headquarters demanding a million dollars for outreach work, and offered=20
to assist the F.B.I. in any way he could. He told a reporter that he was=20
fearful that =E2=80=9Call these years of helping with the education and=20
understanding may have come down with the twin towers.=E2=80=9D
By the summer of 2004, the Treasury Department had designated eleven=20
foreign branches of Al Haramain as supporters of terrorism, along with=20
Aqil, the director, who still lives in Saudi Arabia. =E2=80=9CIt was under =
the=20
cloak of charity that Aqeel al-Aqil used the Al Haramain organization to=20
benefit himself and Al Qaeda,=E2=80=9D Juan Zarate, a deputy assistant secr=
etary=20
in the department, announced in June, 2004.
Three months later, the Treasury Department singled out the Oregon=20
branch. A statement pointed to links with Al Qaeda, asserting that the=20
charity had diverted funds to support =E2=80=9CChechen leaders affiliated w=
ith=20
the al-Qaida network.=E2=80=9D Treasury officials would not elaborate, citi=
ng=20
the classified nature of the evidence; Cari Stinebower, a lawyer who=20
until 2005 worked on designations at the Treasury Department, told me=20
that the process relied on information that was too sensitive to be=20
revealed. =E2=80=9CIn the intelligence community, people love to collect, b=
ut=20
they hate to disseminate,=E2=80=9D she said.
Buthi was labelled a Specially Designated Global Terrorist. (He was in=20
Riyadh, where he still works as a municipal-government official.) Pete=20
Seda was not designated; a year and a half earlier, he had left the=20
country, ostensibly to go on the hajj, and had not returned.
Under normal circumstances, Seda, Buthi, and the lawyers representing Al=20
Haramain would never have known that the Treasury Department, in its=20
investigation, had relied on telephone conversations secretly=20
intercepted by the N.S.A. Yet, according to court filings by attorneys=20
who have seen it, the document that the department mistakenly sent=20
Bernabei described intercepted conversations between Buthi, in Riyadh,=20
and two of Al Haramain=E2=80=99s attorneys, Asim Ghafoor and Wendell Belew,=
in=20
Washington. The document was dated May 24, 2004; the conversations took=20
place in March and April=E2=80=94just as the Treasury Department was=20
investigating the charity.
On February 28, 2006, Al Haramain filed suit against the Bush=20
Administration in Oregon federal court, claiming that the government had=20
violated the First, Fourth, and Sixth Amendments, along with the Foreign=20
Intelligence Surveillance Act of 1978, which makes it illegal for the=20
government to use wiretaps in the U.S. without a warrant. The=20
warrantless-wiretapping program has been challenged in numerous lawsuits=20
over the past two years, many brought on behalf of journalists and=20
activists, who make sympathetic plaintiffs but struggle to demonstrate=20
that the government actually listened to them. In 2006, a federal court=20
in Michigan found warrantless surveillance unconstitutional, but an=20
appeals court overturned the ruling, concluding that the plaintiff, the=20
A.C.L.U., could not prove that any individual had been targeted by the=20
program.
In the classified document, Al Haramain appeared to have the proof that=20
the other cases lacked. Although the F.B.I. had retrieved the copies=20
that Bernabei distributed to her fellow-lawyers, it made no effort to=20
recover those which went to Seda and Buthi, who were both living in the=20
Middle East. When Al Haramain=E2=80=99s attorneys filed their lawsuit with =
the=20
court, they included an envelope containing a copy of the document.
Justice Department lawyers objected that the document was too sensitive=20
to be kept at the court. A classified document remains classified even=20
if the government has inadvertently disclosed it, they argued, and the=20
document turned over to Al Haramain was classified at the highest level;=20
it contained Sensitive Compartmented Information, which must be kept in=20
a special facility, called a SCIF. The government maintained that the=20
document should be turned over to the F.B.I. =E2=80=9CWhat if I say I will =
not=20
deliver it to the F.B.I.?=E2=80=9D the judge, Garr King, asked, according t=
o a=20
transcript of the proceedings. =E2=80=9CWe obviously don=E2=80=99t want to =
have any kind=20
of confrontation with you,=E2=80=9D a government lawyer, Anthony Coppolino,=
=20
replied. =E2=80=9CBut it has to be secured in a proper fashion.=E2=80=9D Ju=
dge King=20
eventually agreed to transfer the document to a nearby SCIF, at the U.S.=20
Attorney=E2=80=99s office in Seattle.
The Bush Administration then moved to dismiss Al Haramain=E2=80=99s case, c=
iting=20
the =E2=80=9Cstate-secrets privilege,=E2=80=9D a controversial legal doctri=
ne that can=20
be used to prevent the introduction of evidence that might jeopardize=20
national security. Judges tend to show deference when the executive=20
branch invokes state secrets; courts have rejected the privilege on=20
fewer than six occasions since it was first recognized by the Supreme=20
Court, in 1953. In that case, U.S. v. Reynolds, the widows of three=20
civilian engineers who died in the crash of an Air Force B-29 sued for=20
negligence. The government would not turn over the accident report,=20
asserting that it contained information about the plane=E2=80=99s secret=20
electronic equipment. However, when the report was declassified, in the=20
nineties, there was no mention of secret electronic equipment. It did=20
reveal that the plane lacked standard safeguards to prevent the engine=20
from overheating=E2=80=94the very negligence that the widows had alleged.
Nevertheless, government lawyers still cite Reynolds to argue that the=20
courts should trust the executive on matters of national security.=20
According to a 2005 study by William Weaver and Robert Pallitto,=20
political scientists at the University of Texas at El Paso, the Bush=20
Administration has claimed the state-secrets privilege in recent years=20
with =E2=80=9Coffhanded abandon.=E2=80=9D By Weaver and Pallitto=E2=80=99s =
count of reported=20
instances, the privilege was invoked fifty-five times in the half=20
century before 2001; it has been used more than two dozen times in the=20
years since. Its heavy use has drawn criticism from members of Congress,=20
including Senator Arlen Specter, the senior Republican on the Judiciary=20
Committee. =E2=80=9CWe=E2=80=99re going to look back at this period of time=
two decades=20
from now and see a vast expansion of executive authority,=E2=80=9D Specter =
told=20
me this month. =E2=80=9CAnd a big part of it is done by the state-secrets=
=20
doctrine. Do I think in some cases that the government uses it=20
inappropriately? Absolutely.=E2=80=9D
In recent years, Justice Department lawyers have used the privilege not=20
only to eliminate key pieces of evidence but also to dismiss potential=20
legal challenges altogether. Last year, a federal appeals court ruled=20
that a German citizen, Khaled el-Masri, who alleges that, in a case of=20
mistaken identity, he was kidnapped and tortured by the C.I.A., cannot=20
sue the United States, because the =E2=80=9Cvery subject matter=E2=80=9D of=
his=20
lawsuit=E2=80=94America=E2=80=99s extraordinary-rendition program=E2=80=94i=
s secret. Some, like=20
Senator Patrick Leahy, the chairman of the Senate Judiciary Committee,=20
contend that the Administration is using the state-secrets doctrine to=20
prevent the courts from assessing the legality of controversial=20
programs. The White House =E2=80=9Chas taken a legal doctrine that was inte=
nded=20
to protect sensitive national-security information and seems to be using=20
it to evade accountability for its own misdeeds,=E2=80=9D Leahy said in=20
February, during a Senate hearing on the privilege.
A senior Justice Department official who was authorized to comment told=20
me that the Bush Administration is trying to protect national-security=20
secrets, not to shield its activities from scrutiny. A challenge to the=20
wiretapping program could proceed, he said, provided the surveillance=20
was =E2=80=9Csufficiently well disclosed.=E2=80=9D But a government documen=
t describing=20
that surveillance, such as the one Al Haramain received, would not=20
qualify as disclosure. Only a formal acknowledgment by the government=20
would suffice.
Still, in September, 2006, Judge King refused to throw out Al Haramain=E2=
=80=99s=20
case on state-secrets grounds, noting that President Bush and other=20
officials had already confirmed the existence of the surveillance=20
program. King agreed to bar the classified document from the case, but=20
proposed that the attorneys for Al Haramain file affidavits describing=20
their memories of it, which could be used to prove that Al Haramain had=20
been subjected to surveillance.
None of the lawyers for the charity who have seen the document would=20
describe its contents. But Soliman al-Buthi and the two Washington=20
lawyers, Asim Ghafoor and Wendell Belew, agreed to tell me what they=20
were discussing on the telephone during March and April of 2004, when=20
the surveillance appears to have taken place.
In 2002, scores of prominent Saudis, including Buthi, were named as=20
defendants in a lawsuit brought on behalf of the victims of September=20
11th. Ghafoor had agreed to represent the Saudis, and Belew was lobbying=20
in Washington on their behalf; the three men had several conversations=20
about the payment of the lawyers=E2=80=99 fees, which Buthi was helping to=
=20
co=C3=B6rdinate. I asked whether Buthi might have mentioned any defendants=
=20
who could have been of interest to U.S. intelligence. Buthi, Belew, and=20
Ghafoor all volunteered the same names: Safar al-Hawali and Salman=20
al-Auda, two radical clerics who have been publicly praised by Osama bin=20
Laden; and Mohammed Jamal Khalifa, a Jidda businessman who was bin=20
Laden=E2=80=99s brother-in-law and onetime best friend.
=E2=80=9CThere=E2=80=99s an argument to be made that designating Al Haramai=
n was a=20
mistake,=E2=80=9D Jon Eisenberg, an appellate lawyer who is representing th=
e=20
charity in its wiretapping lawsuit, and who has seen the document, told=20
me. Still, he said, =E2=80=9Cit is not my role to figure out if they are=20
terrorists or not.=E2=80=9D In court filings, Al Haramain=E2=80=99s lawyers=
have said=20
that something in the document suggests that the surveillance was=20
conducted without a warrant. In Eisenberg=E2=80=99s view, the more suspicio=
us Al=20
Haramain seemed, the easier it should have been to obtain one.
When Judge King did not dismiss Al Haramain=E2=80=99s case, the Bush=20
Administration appealed. Along with public filings to the federal=20
appeals court in San Francisco, government lawyers included a set of=20
secret arguments that Eisenberg was not allowed to see. Based on his=20
knowledge of the document, Eisenberg decided to guess at these=20
arguments, and counter them.
Because the document was still classified, anything Eisenberg wrote=20
about its contents would become =E2=80=9Cderivatively classified,=E2=80=9D =
so he was=20
obliged to write his brief under supervision=E2=80=94not of the court but o=
f the=20
Litigation Security Section of the Justice Department, his adversary. A=20
security officer, Erin Hogarty, explained the special procedures for the=20
drafting: it must take place at the department=E2=80=99s offices in San=20
Francisco; Eisenberg could bring no notes with him, and must use a=20
government computer. Hogarty also said that Steven Goldberg, one of=20
Eisenberg=E2=80=99s colleagues, could join him but that Tom Nelson, another=
=20
lawyer for Al Haramain, could not. According to Eisenberg, Hogarty later=20
told him that the order about Nelson came directly from one of the=20
government lawyers working on the case.
The senior Justice Department official told me that Hogarty had never=20
been explicitly instructed that Nelson could not participate. Rather,=20
she was told that because Nelson had not allowed government technicians=20
to purge his computer of classified information he raised =E2=80=9Cdifferen=
t=20
security concerns.=E2=80=9D The Litigation Security Section is ostensibly=
=20
neutral and independent, but Eisenberg contends that Hogarty, as a=20
Justice Department employee taking orders from government lawyers=20
working on the case, had a conflict of interest, and that allowing his=20
opponents to determine who could contribute to a court filing undermines=20
the fairness of the adversarial process. The official disagreed. =E2=80=9CI=
=20
don=E2=80=99t think this episode even begins to raise a serious issue,=E2=
=80=9D he said.
Last June, Eisenberg and Goldberg met Hogarty at the Justice Department=20
offices in San Francisco and were escorted to a windowless room. Hogarty=20
took their cell phones and the battery from Eisenberg=E2=80=99s laptop. She=
=20
supplied them with a government computer. The drafting lasted three=20
hours. Eisenberg got hungry, and Hogarty offered him a banana from her=20
lunch. When the brief was completed, Eisenberg and Goldberg printed out=20
copies for the judges and for the government lawyers; because Al=20
Haramain=E2=80=99s lawyers did not have security clearance, they were not=
=20
allowed to keep a copy of the brief they had just written. Hogarty=20
assembled the preliminary drafts and said that she would shred them=E2=80=
=94and=20
Eisenberg=E2=80=99s banana peel, too.
After the drafting session, Hogarty and Eisenberg met once more, to wipe=20
his computer of any classified information. As it happened, the laptop=20
had died of its own accord; Eisenberg and Hogarty agreed to destroy the=20
hard drive. Hogarty had brought a technician with her, and he extracted=20
the hard drive and memory board from the laptop. Then he and Hogarty=20
placed the hard drive on the floor and pounded it with a table leg.
Oral arguments before the Ninth Circuit Court of Appeals in Al Haramain=20
Islamic Foundation, Inc. v. George W. Bush took place in August, 2007,=20
and focussed almost exclusively on the document. Al Haramain=E2=80=99s lawy=
ers=20
might think that the document was proof of surveillance, Thomas Bondy,=20
the government=E2=80=99s lawyer, argued, but they could be wrong. =E2=80=9C=
Although they=20
think or believe or claim they were surveilled,=E2=80=9D Bondy concluded, =
=E2=80=9Cit=E2=80=99s=20
possible that they weren=E2=80=99t.=E2=80=9D
=E2=80=9CBasically,=E2=80=9D Eisenberg told me later, the government is =E2=
=80=9Csaying that=20
when it comes to matters of national security there is no truth. We will=20
not confirm or deny. So it doesn=E2=80=99t matter what you know.=E2=80=9D
The appeals-court judges ruled in November that, because of the =E2=80=9Cca=
scade=20
of acknowledgments=E2=80=9D of the wiretapping program, Al Haramain=E2=80=
=99s case could=20
not be thrown out on the ground that its subject matter was a secret.=20
But, after inspecting the document themselves, they rejected Judge=20
King=E2=80=99s suggestion that affidavits describing it could be used in co=
urt,=20
calling that solution a =E2=80=9Cback door around the privilege.=E2=80=9D
The judges sent the case to a district court to decide one final issue.=20
Without the document or the affidavits describing it, Al Haramain will=20
have trouble proving that it was subject to surveillance. But Eisenberg=20
insisted that he was optimistic. =E2=80=9CWe=E2=80=99re still alive,=E2=80=
=9D he said.
On August 15th, as Eisenberg was delivering his oral arguments in the=20
appeals court in California, Pete Seda returned to Oregon. He had been a=20
fugitive for two and a half years, travelling with his wives from Saudi=20
Arabia to the United Arab Emirates, Iran, and Syria. In his absence,=20
federal prosecutors had indicted him, along with Buthi, and when he=20
arrived at the airport in Portland he was arrested. The indictment=20
focussed on an incident in 2000, in which Buthi had converted a=20
hundred-and-fifty-thousand-dollar donation to Al Haramain Oregon into=20
cashier=E2=80=99s and traveller=E2=80=99s checks, and had carried the money=
to Riyadh=20
without declaring it at the airport. The foundation allegedly lied on=20
its tax return to hide the funds. Authorities implied that the donation=20
was intended for the rebels in Chechnya. (Seda has pleaded not guilty;=20
Al Haramain=E2=80=99s lawyers say that the money did go to Chechnya, but in=
=20
support of refugees.) There were no charges of terrorism or terrorist=20
financing.
Ibrahim Warde, a professor at the Fletcher School of Law and Diplomacy,=20
at Tufts, and the author of =E2=80=9CThe Price of Fear,=E2=80=9D a critique=
of the war=20
on terrorist financing, said that the Al Haramain case is typical of the=20
Administration=E2=80=99s approach to Islamic charities. =E2=80=9CIt was a g=
iant=20
bait-and-switch game,=E2=80=9D he told me. The government =E2=80=9Cwould in=
itially tout=20
the connection with Al Qaeda, and then in the end would nail them on=20
some unrelated infraction having to do with tax evasion or immigration.=E2=
=80=9D=20
But Matthew Levitt, the former Treasury Department official, told me=20
that when a designation is followed by a criminal indictment without=20
charges of terrorism defense attorneys are too quick to conclude that=20
their clients are innocent. =E2=80=9CThe fact that someone is designated an=
d=20
then not charged for that activity means nothing,=E2=80=9D he said.
One consideration for prosecutors is that winning convictions on=20
terrorism charges can be difficult. In October, 2007, a major case=20
brought by the government against the Holy Land Foundation, which before=20
it was designated, in 2001, was the largest Islamic charity in the U.S.,=20
concluded without a single conviction. Prosecutors had charged the group=20
with providing =E2=80=9Cmaterial support=E2=80=9D for terrorism. One of the=
jurors=20
described the government=E2=80=99s evidence as =E2=80=9Cstrung together wit=
h macaroni=20
noodles.=E2=80=9D
Jeffrey Breinholt, a senior Justice Department official who is currently=20
on leave at the International Assessment and Strategy Center, in=20
Washington, observes that charging suspects with supporting terrorism=20
might require disclosing secret information in court. Seda=E2=80=99s case=
=20
signifies a change in tactics for federal prosecutors, Breinholt told=20
me, toward =E2=80=9CAl Capone-ing=E2=80=9D suspects=E2=80=94charging them o=
n whatever will=20
secure a conviction.
=E2=80=9CIf you charge them for things like we charged the guys in Oregon w=
ith,=20
there=E2=80=99s necessarily going to be less national-security disclosure o=
f=20
information,=E2=80=9D Breinholt said. =E2=80=9CIt=E2=80=99s a calculated de=
cision to go after=20
them for smaller things.=E2=80=9D Breinholt and a Justice Department spokes=
man=20
both noted the success of a case that was decided in Boston in January,=20
in which officials from Care International, another Islamic charity=20
accused of terrorism (and not affiliated with the well-known=20
humanitarian organization of the same name), were convicted on tax charges.
One flaw of this approach is that although it may bring convictions, it=20
seldom results in substantial jail time. When Seda returned to Oregon,=20
the U.S. Attorney=E2=80=99s office argued that he should be kept behind bar=
s=20
pending his trial on tax charges. The prosecutor, Chris Cardani,=20
insisted that Seda subscribed to a militant brand of Wahhabi Islam and=20
represented a flight risk. =E2=80=9CThis is a case about radical forms of=
=20
religion and the effects it has on people,=E2=80=9D he said in a detention=
=20
hearing last summer.
To demonstrate that Seda was a threat, Cardani called on Daveed=20
Gartenstein-Ross, the young Ashland convert who had worked for Seda in=20
the late nineties. Gartenstein-Ross had since converted again, to=20
Christianity. He began co=C3=B6perating with authorities, supplying them wi=
th=20
information on Al Haramain, and eventually wrote a book, =E2=80=9CMy Year I=
nside=20
Radical Islam.=E2=80=9D
Gartenstein-Ross testified that Seda had been opposed to terrorism. But=20
he also pointed to disturbing passages in the Islamic literature that Al=20
Haramain distributed: an appendix in one edition of the Koran that=20
featured a =E2=80=9CCall to Jihad=E2=80=9D; a book of Islamic guidelines, w=
hich=20
declared, =E2=80=9CThe Last Hour will not appear unless the Muslims fight t=
he=20
Jews and kill them.=E2=80=9D Still, it was not clear that Seda personally=
=20
subscribed to these views. =E2=80=9CHe=E2=80=99s a Koranic literalist,=E2=
=80=9D Gartenstein-Ross=20
told me. =E2=80=9CBut if the question is how much he actually read the Kora=
n,=20
the answer is almost never. He didn=E2=80=99t read Arabic, and he had troub=
le=20
reading English. And all of our translations were English-Arabic.=E2=80=9D
In the hunt for terrorists and those who support them, intelligence=20
analysts construct =E2=80=9Clink charts=E2=80=9D to connect a suspicious in=
dividual to=20
his known acquaintances, to their known acquaintances, and so on=E2=80=94an=
=20
exercise in six degrees of separation. (In 2000, Army intelligence=20
analysts trying to =E2=80=9Cmap=E2=80=9D Al Qaeda reportedly described the =
effort as=20
=E2=80=9Cthe Kevin Bacon game.=E2=80=9D) In designating Al Haramain Oregon,=
Treasury=20
Department officials cited =E2=80=9Cdirect links=E2=80=9D with Al Qaeda, bu=
t have never=20
revealed the precise nature of those links. Stinebower, the former=20
Treasury lawyer, said she was unaware of any internal definition of=20
=E2=80=9Cdirect links.=E2=80=9D She wouldn=E2=80=99t discuss the particular=
s of the Al Haramain=20
designation, but did say, =E2=80=9CIt wouldn=E2=80=99t have been sufficient=
that A picks=20
up a phone and calls B, and B picks up a phone and talks to C, therefore=20
A knows C. There would have to be more of a connection than that.=E2=80=9D
It seems inevitable that, in seeking to identify and disrupt possible=20
terrorist threats, U.S. intelligence will rely on a suspect=E2=80=99s circl=
e of=20
associates and his religious beliefs. But the First Amendment prevents=20
authorities from prosecuting people solely on the basis of association=20
or ideology, and espousing radical beliefs is not in itself a criminal act.
=E2=80=9CWe=E2=80=99ve put ourselves in a situation where the Department of=
Justice has=20
jumped into this, saying, If they could be a terrorist, then they=E2=80=99r=
e=20
guilty,=E2=80=9D Karen Greenberg, the executive director of the Center on L=
aw=20
and Security at New York University=E2=80=99s law school, told me. =E2=80=
=9CWe don=E2=80=99t=20
have a body of law that says, If you could be, then you are. If we want=20
to move to that, then we have to think very long and hard. Because the=20
risks are immense.=E2=80=9D
On November 30th, the government lost its bid to keep Pete Seda=20
detained. =E2=80=9CI hope that I can again be a positive part of the commun=
ity=20
and continue working to bring peace through understanding,=E2=80=9D Seda sa=
id in=20
a statement. He is now under house arrest; his trial will begin this fall.
Last August, the American Bar Association published a report calling for=20
reform of the state-secrets privilege. =E2=80=9CThere will finally be an=20
instance where you=E2=80=99ve cried =E2=80=98state secrets=E2=80=99 so many=
times that a court=20
will not believe it anymore, and potentially something that is a state=20
secret will get out,=E2=80=9D Carrie Newton Lyons, a former C.I.A. officer =
who=20
chairs the national-security committee of the A.B.A.=E2=80=99s Section of=
=20
International Law, told me. In January, Senators Ted Kennedy and Arlen=20
Specter introduced a bill to curtail the Administration=E2=80=99s use of st=
ate=20
secrets by obliging judges to determine themselves whether evidence is=20
too sensitive to be used in court, and requiring the government to=20
submit classified evidence in redacted or summarized form, rather than=20
barring it completely. Specter objects to the notion that judges must=20
defer to the executive on matters of secret evidence. =E2=80=9CIt=E2=80=99s=
beyond=20
arrogant,=E2=80=9D he told me. =E2=80=9CIt=E2=80=99s insulting.=E2=80=9D
In the meantime, Eisenberg is trying to figure out how Al Haramain can=20
prove that it was wiretapped without reference to either the document or=20
the affidavits describing it. This week, a district judge in San=20
Francisco will consider the only remaining issue in the case, an=20
abstruse legal question about the origins of the state-secrets=20
privilege. The government has submitted a series of classified filings,=20
leaving Eisenberg to guess at what they might contain.
=E2=80=9CThis is the difficulty with classified evidence,=E2=80=9D David Co=
le, a law=20
professor at Georgetown who is assisting Lynne Bernabei in her efforts=20
to have Al Haramain=E2=80=99s designation lifted, told me. =E2=80=9CAt the =
end of the=20
day, you=E2=80=99re fighting shadows. How do you defend against what you ca=
n=E2=80=99t see?=E2=80=9D
In October, Bernabei wrote a letter to the Justice Department. The=20
attorneys representing Al Haramain had been dealing with a novel=20
quandary of legal ethics. If they had a reasonable belief that any=20
telephone conversation with Seda or Buthi might be monitored by the=20
N.S.A., could they talk to their clients without violating=20
attorney-client confidentiality? Bernabei requested confirmation that=20
the government was not intercepting her =E2=80=9Cwritten or oral communicat=
ions=E2=80=9D=20
with her clients. Two weeks later, she received a response from the=20
lawyers at the Justice Department. They wouldn=E2=80=99t confirm or deny. =
=E2=99=A6
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<p><a moz-do-not-send=3D"true"
href=3D"
http://www.newyorker.com/reporting/2008/04/28/080428fa_fact_keefe?=
printable=3Dtrue">
http://www.newyorke<wbr>r.com/reporting/<wbr>2008/04/28/<=
wbr>080428fa_<wbr>fact_keefe?<wbr>printable=3D<wbr>true</a><br>
<br>
<br>
Annals of Surveillance<br>
<br>
State Secrets<br>
<br>
A government misstep in a wiretapping case.<br>
<br>
by Patrick <<a moz-do-not-send=3D"true"
href=3D"
http://www.newyorker.com/search/query?query=3DauthorName:%22Patric=
k%20Radden%20Keefe%22">
http://www.newyorke<wbr>r.com/search/<wbr>query?quer=
y=3D<wbr>authorName:<wbr>%22Patrick%<wbr>20Radden%<wbr>20Keefe%22</a>>
Radden Keefe April 28, 2008 <br>
<br>
Was a classified document proof of warrantless surveillance?<br>
<br>
One Friday afternoon in August, 2004, a Washington, D.C., attorney
named Lynne Bernabei received a package from the Department of the
Treasury. The government was investigating one of her clients, the
American branch of a Saudi charity called the Al Haramain Islamic
Foundation, which had been active in fifty countries. Al Haramain had
come under scrutiny, as had many other Islamic charities, after the
attacks of September 11, 2001, and Treasury Department investigators
believed that Al Haramain=E2=80=99s American branch, which was based in Ore=
gon,
had connections to Al Qaeda. In response to a request from Bernabei for
evidence against her client, the government had turned over two sets of
documents, primarily media reports that referred to other branches of
Al Haramain. None of the materials demonstrated a direct connection
between the Oregon branch and Al Qaeda. <br>
<br>
Bernabei asked for any classified evidence the government might have,
arguing that it was impossible to rebut evidence that she couldn=E2=80=99t =
see.
When a third batch of evidence arrived, that August afternoon, the
cover letter noted that the enclosed materials were =E2=80=9Cunclassified,=
=E2=80=9D so
Bernabei didn=E2=80=99t give much thought to the last item, a four-page
document stamped =E2=80=9CTop Secret.=E2=80=9D =E2=80=9CMy impression was t=
hat it might have
been something that was declassified,=E2=80=9D she told me recently. <br>
<br>
Bernabei photocopied the materials and forwarded them to the half-dozen
clients and attorneys associated with the case. Several weeks later,
the Treasury Department concluded its investigation, and declared the
Oregon branch of Al Haramain a Specially Designated Global Terrorist
entity, citing =E2=80=9Cdirect links=E2=80=9D with Osama bin Laden. <br>
<br>
Soon afterward, two F.B.I. agents visited Bernabei=E2=80=99s office and
informed her that a classified document had accidentally been turned
over to her. Bernabei told them that she had received only
=E2=80=9Cunclassified=E2=80=9D information, but she agreed to retrieve the =
document
from her files. According to Bernabei, one of the agents suggested that
as she looked for the document she should try not to think about what
it contained. In the following weeks, F.B.I. agents tracked down the
copies that she had distributed. One lawyer for Al Haramain had an
electronic copy. The F.B.I. asked to purge it from his computers.<br>
<br>
Bernabei said that she and her associates did not appreciate the
significance of the document, and the government=E2=80=99s efforts to recov=
er
it, until December, 2005, when the New York Times revealed that the
Bush Administration had authorized the National Security Agency to
employ wiretaps inside the United States without first getting a
warrant. The document that the Treasury Department had turned over to
Bernabei appears to have been a summary of intercepted telephone
conversations between two of Al Haramain=E2=80=99s American lawyers, in
Washington, and one of the charity=E2=80=99s officers, in Saudi Arabia. The
government had evidently passed along proof of surveillance to the
targets of that surveillance, and supplied the Oregon branch of Al
Haramain=E2=80=94a suspected terrorist organization=E2=80=94with ammunition=
to
challenge the constitutionality of the warrantless-<wbr>wiretapping
program.<br>
<br>
Well before September 11th, U.S. intelligence agencies had suspicions
about the connections between Islamic charities and terrorism. Zakat,
or charitable tithing, is one of the five pillars of Islam, a duty for
observant Muslims, and, by some estimates, Saudi charities raise four
billion dollars a year. They establish mosques and community centers,
distribute religious literature, and dispatch clerics to spread
Wahhabism, the severe strain of fundamentalist Islam that is the
official religion of the kingdom. =E2=80=9CThis is an element of Saudi fore=
ign
policy,=E2=80=9D Lee Wolosky, a member of the National Security Council in =
the
Clinton and Bush Administrations, told me. =E2=80=9CIt=E2=80=99s very well =
co=C3=B6rdinated.
It happens at the highest levels of the Saudi state.=E2=80=9D In 2004, Davi=
d
Aufhauser, who as the Treasury Department=E2=80=99s general counsel oversaw=
its
counterterrorism efforts after September 11th, estimated that in recent
decades the kingdom had spent =E2=80=9Cnorth of seventy-five billion dollar=
s=E2=80=9D
on Islamic evangelism. <br>
<br>
Al Haramain was established, with help from the Saudi royal family, in
1991. Its headquarters were in Riyadh, with offices in foreign
countries. Within a few years, the charity was suspected by the C.I.A.
of involvement in terrorism. In 1996, a C.I.A. report suggested that a
third of Islamic N.G.O.s =E2=80=9Csupport terrorist groups or employ
individuals who are suspected of having terrorist connections=E2=80=9D; it
named Al Haramain as an example. In 1997, a C.I.A. informant in Nairobi
said that the local branch of Al Haramain planned to blow up the U.S.
Embassy. According to the Times, a C.I.A. inquiry turned up no evidence
of a plot, but after the bombings of the American Embassies in Tanzania
and Kenya, the following year, Kenyan authorities ordered Al Haramain
from the country. In a trial on the bombings in New York in 2001,
prosecutors introduced a collection of business cards that had been
seized from the Nairobi home of Wadih el-Hage, an Al Qaeda operative
who was eventually convicted for his role. One belonged to Mansour
al-Kadi, an Al Haramain official in Riyadh, who was the titular
vice-president of the Oregon branch (though he never played an active
role there, and no further connection was made between the charity and
the bombings). <br>
<br>
Aqeel al-Aqil, who was Al Haramain=E2=80=99s director during the nineties, =
told
me by e-mail that he could not control aid and donations once they
arrived in areas of conflict, such as Bosnia and Chechnya. =E2=80=9CIf you =
give
a sack of flour to a needy family,=E2=80=9D he said, =E2=80=9Cyou cannot gu=
arantee that
some of their mujahideen sons will not eat some of the bread made of
that flour.=E2=80=9D U.S. authorities, however, believed that the charities
must be held accountable. =E2=80=9CHistorically, Al Qaeda and other terrori=
st
groups have set up or exploited some charities,=E2=80=9D Stuart Levey, the
Treasury Department=E2=80=99s Under-Secretary for Terrorism and Financial
Intelligence, told the Senate Finance Committee earlier this month.
=E2=80=9CThose who reach for their wallets to fund terrorism must be pursue=
d
and punished in the same way as those who reach for a bomb or a gun.=E2=80=
=9D<br>
<br>
After September 11th, the F.B.I. assigned Dennis Lormel, a veteran
financial investigator, to look into how Al Qaeda secured its funding.
=E2=80=9CWe latched on to charities immediately,=E2=80=9D he told me. On Se=
ptember 23,
2001, President Bush signed an executive order authorizing the Treasury
Department to =E2=80=9Cdesignate=E2=80=9D individuals or entities believed =
to be
supporting or =E2=80=9Cotherwise associated=E2=80=9D with terrorism, in ord=
er to help
shut down what Bush called =E2=80=9Cthe financial foundation of the global
terror network.=E2=80=9D <br>
<br>
Designations amount to a kind of economic embargo: anyone who does
business with a designated person risks criminal or civil penalties.
The Treasury Department can act more quickly than the police or the
F.B.I., who may take action only after an investigation. By
pre=C3=ABmptively freezing a suspect=E2=80=99s assets, =E2=80=9Cthe governm=
ent does not have
to watch these dollars continue to flow over a period of months or
years as it investigates whether it will pursue criminal charges,=E2=80=9D =
a
department spokesman, Andrew DeSouza, told me. <br>
<br>
Authorities also need less evidence for a designation than they would
for prosecution, and they can rely on evidence that would not be
admissible in a criminal trial. Matthew Levitt, who until last year was
deputy assistant secretary for intelligence and analysis at the
Treasury Department, says that designations involve =E2=80=9Can extremely
robust process. This is not something that can be done easily or
willy-nilly.=E2=80=9D But Lormel, who retired from the F.B.I. in 2003, says=
he
would have been =E2=80=9Chard pressed=E2=80=9D to act on some of the materi=
al that
Treasury officials used. =E2=80=9COftentimes, I think they base their evide=
nce
on media stories or public-source information, whereas we would never
use only that,=E2=80=9D he told me.<br>
<br>
In addition, the Treasury Department may use classified evidence that
is never disclosed to the designated party, despite an established
principle of the American legal system that the accused should have an
opportunity to confront evidence against him. Designations can be
challenged before a federal judge, but lawyers for the designated party
are not shown all the government=E2=80=99s evidence and cannot introduce th=
eir
own. Nearly five hundred individuals and groups have been labelled
Specially Designated Global Terrorists since 2001; there has never been
a successful challenge in court. A designation =E2=80=9Ceffectively denies
people province over their own property in a largely unreviewable way,=E2=
=80=9D
Aufhauser, the department=E2=80=99s former general counsel, told me. =E2=80=
=9CSuch an
extraordinary power needs to be exercised with discretion, because it
could be constitutionally suspect.=E2=80=9D<br>
<br>
Al Haramain was an early target. Foreign branches=E2=80=94including those i=
n
Somalia and Bosnia, which, according to officials, had been directing
funds to terrorist groups=E2=80=94were the first to be designated. Lormel
dispatched F.B.I. agents to Ashland, Oregon, to investigate the
American branch.<br>
<br>
Situated in the Rogue Valley, and surrounded by the dramatic foothills
of the Siskiyou and Cascade Mountains, Ashland is a semirural community
of some twenty thousand people. Main Street is lined with organic
restaurants, coffee shops, and independent bookstores, and locals
describe the town as unusually liberal for conservative southern Oregon.<br=
>
<br>
Al Haramain Oregon was run by a longtime Ashland resident named Pirouz
Sedaghaty, who is known as Pete Seda. Now fifty years old, he grew up
in a secular household in Iran, where his father was a general under
the Shah. In 1976, when he was eighteen, Seda followed an older brother
to Ashland. He enrolled at the local college, but struggled with
reading and writing in English, and never graduated. He drifted into
environmental activism, demonstrating against the spraying of
herbicides in national forests. <br>
<br>
In the nineteen-eighties, Seda went into business as the Arborist,
transplanting trees and doing landscaping projects. He became more
religious, and converted several friends to Islam, outdoorsmen who
dressed like lumberjacks=E2=80=94one Ashland resident described them as =E2=
=80=9CMuslim
rednecks.=E2=80=9D He arranged places for Friday prayers, and established a
nonprofit group, the Qur=E2=80=99an Foundation, which mailed religious
literature to Muslims in prison. <br>
<br>
Seda became a fixture at peace rallies and multicultural fairs in
Ashland. =E2=80=9CHe was the go-to guy if you wanted to have an interreligi=
ous
dialogue,=E2=80=9D the Reverend Caren Caldwell, a local Protestant minister=
who
has known Seda for twenty years, said. =E2=80=9CI=E2=80=99m not a Muslim mi=
nister,=E2=80=9D
Seda told worshippers at a local synagogue, where the rabbi often
invited him to speak. =E2=80=9CI=E2=80=99m just a common brother in our com=
munity.=E2=80=9D He
spoke of the importance of monotheism and prayer, and of how terrorism
is inimical to the teachings of the Koran. He bought a camel, which he
named Mandub (=E2=80=9Cemissary=E2=80=9D in Arabic). He led it down Main St=
reet in the
Fourth of July parade. <br>
<br>
In 1993, Seda met and married an Iranian woman named Laleh; he lived
with her and another woman=E2=80=94whom he considered a second wife=E2=80=
=94in Ashland.
(Seda has two sons, from an earlier marriage.) That woman eventually
left, and a college student named Summer Rife moved in. =E2=80=9CI met Pete=
at
an academic presentation he was giving on Islam,=E2=80=9D Rife, who is now
twenty-seven, said in an e-mail. (Seda=E2=80=99s lawyer advised him against
talking to me, but Rife agreed to respond to written questions.) She
seems somewhat in thrall to Seda. =E2=80=9CIf Pete had the means and
opportunity, he could really make a positive difference in the world,=E2=80=
=9D
she wrote. =E2=80=9CHe is Nobel Prize material.=E2=80=9D<br>
<br>
Soliman al-Buthi, a Saudi who worked for Al Haramain as its treasurer,
and who was interested in establishing an American branch, visited Seda
in Ashland in 1997. Seda, who was born a Shiite and wore a neatly
trimmed beard and fleece jackets, seemed an unlikely partner for Buthi,
a Sunni who wore long robes and kaffiyehs. Buthi told me recently that
he had heard of Seda=E2=80=99s Qur=E2=80=99an Foundation from a mutual frie=
nd, and that
he chose the Rogue Valley, where there were only a few dozen Muslims,
because he wanted to =E2=80=9Cstart small.=E2=80=9D Buthi offered to turn S=
eda=E2=80=99s
shoestring operation into a well-financed arm of Al Haramain. =E2=80=9CHe t=
old
me that he had become a Sunni,=E2=80=9D Buthi said, adding, =E2=80=9CI don=
=E2=80=99t think
there would be any co=C3=B6perating with a Shia.=E2=80=9D (Rife told me tha=
t Seda
=E2=80=9Cdoes not believe in sectarianism. We like to say we are Muslim.=E2=
=80=9D)<br>
<br>
Al Haramain Oregon was incorporated in 1999. Aqeel al-Aqil, in Riyadh,
was listed as the titular president, and Seda and Buthi as officers.
With a hundred and eighty-eight thousand dollars from Riyadh, Seda
bought a split-level house to serve as a prayer space for local Muslims
and as a warehouse for literature. He hired a young Wake Forest
graduate named Daveed Gartenstein-<wbr>Ross, who had grown up Jewish in
Ashland and converted to Islam in college, to assist him. <br>
<br>
At times, Seda seemed to be adopting a more militant set of beliefs.
=E2=80=9CHe said he=E2=80=99d like to go over and fight with the Chechens,=
=E2=80=9D Abdullah
Cabral, a retired truck driver who in 1999 accompanied Seda on the
hajj, told me. =E2=80=9CI took it with a grain of salt. You want to leave y=
our
business, two young sons, a couple of wives?=E2=80=9D But by all accounts S=
eda
was devastated by the events of September 11th. He wrote to Al Haramain
headquarters demanding a million dollars for outreach work, and offered
to assist the F.B.I. in any way he could. He told a reporter that he
was fearful that =E2=80=9Call these years of helping with the education and
understanding may have come down with the twin towers.=E2=80=9D <br>
<br>
By the summer of 2004, the Treasury Department had designated eleven
foreign branches of Al Haramain as supporters of terrorism, along with
Aqil, the director, who still lives in Saudi Arabia. =E2=80=9CIt was under =
the
cloak of charity that Aqeel al-Aqil used the Al Haramain organization
to benefit himself and Al Qaeda,=E2=80=9D Juan Zarate, a deputy assistant
secretary in the department, announced in June, 2004. <br>
<br>
Three months later, the Treasury Department singled out the Oregon
branch. A statement pointed to links with Al Qaeda, asserting that the
charity had diverted funds to support =E2=80=9CChechen leaders affiliated w=
ith
the al-Qaida network.=E2=80=9D Treasury officials would not elaborate, citi=
ng
the classified nature of the evidence; Cari Stinebower, a lawyer who
until 2005 worked on designations at the Treasury Department, told me
that the process relied on information that was too sensitive to be
revealed. =E2=80=9CIn the intelligence community, people love to collect, b=
ut
they hate to disseminate,=E2=80=9D she said. <br>
<br>
Buthi was labelled a Specially Designated Global Terrorist. (He was in
Riyadh, where he still works as a municipal-governmen<wbr>t official.)
Pete Seda was not designated; a year and a half earlier, he had left
the country, ostensibly to go on the hajj, and had not returned. <br>
<br>
Under normal circumstances, Seda, Buthi, and the lawyers representing
Al Haramain would never have known that the Treasury Department, in its
investigation, had relied on telephone conversations secretly
intercepted by the N.S.A. Yet, according to court filings by attorneys
who have seen it, the document that the department mistakenly sent
Bernabei described intercepted conversations between Buthi, in Riyadh,
and two of Al Haramain=E2=80=99s attorneys, Asim Ghafoor and Wendell Belew,=
in
Washington. The document was dated May 24, 2004; the conversations took
place in March and April=E2=80=94just as the Treasury Department was
investigating the charity.<br>
<br>
On February 28, 2006, Al Haramain filed suit against the Bush
Administration in Oregon federal court, claiming that the government
had violated the First, Fourth, and Sixth Amendments, along with the
Foreign Intelligence Surveillance Act of 1978, which makes it illegal
for the government to use wiretaps in the U.S. without a warrant. The
warrantless-<wbr>wiretapping program has been challenged in numerous
lawsuits over the past two years, many brought on behalf of journalists
and activists, who make sympathetic plaintiffs but struggle to
demonstrate that the government actually listened to them. In 2006, a
federal court in Michigan found warrantless surveillance
unconstitutional, but an appeals court overturned the ruling,
concluding that the plaintiff, the A.C.L.U., could not prove that any
individual had been targeted by the program. <br>
<br>
In the classified document, Al Haramain appeared to have the proof that
the other cases lacked. Although the F.B.I. had retrieved the copies
that Bernabei distributed to her fellow-lawyers, it made no effort to
recover those which went to Seda and Buthi, who were both living in the
Middle East. When Al Haramain=E2=80=99s attorneys filed their lawsuit with =
the
court, they included an envelope containing a copy of the document. <br>
<br>
Justice Department lawyers objected that the document was too sensitive
to be kept at the court. A classified document remains classified even
if the government has inadvertently disclosed it, they argued, and the
document turned over to Al Haramain was classified at the highest
level; it contained Sensitive Compartmented Information, which must be
kept in a special facility, called a SCIF. The government maintained
that the document should be turned over to the F.B.I. =E2=80=9CWhat if I sa=
y I
will not deliver it to the F.B.I.?=E2=80=9D the judge, Garr King, asked,
according to a transcript of the proceedings. =E2=80=9CWe obviously don=E2=
=80=99t want
to have any kind of confrontation with you,=E2=80=9D a government lawyer,
Anthony Coppolino, replied. =E2=80=9CBut it has to be secured in a proper
fashion.=E2=80=9D Judge King eventually agreed to transfer the document to =
a
nearby SCIF, at the U.S. Attorney=E2=80=99s office in Seattle.<br>
<br>
The Bush Administration then moved to dismiss Al Haramain=E2=80=99s case,
citing the =E2=80=9Cstate-secrets privilege,=E2=80=9D a controversial legal=
doctrine
that can be used to prevent the introduction of evidence that might
jeopardize national security. Judges tend to show deference when the
executive branch invokes state secrets; courts have rejected the
privilege on fewer than six occasions since it was first recognized by
the Supreme Court, in 1953. In that case, U.S. v. Reynolds, the widows
of three civilian engineers who died in the crash of an Air Force B-29
sued for negligence. The government would not turn over the accident
report, asserting that it contained information about the plane=E2=80=99s
secret electronic equipment. However, when the report was declassified,
in the nineties, there was no mention of secret electronic equipment.
It did reveal that the plane lacked standard safeguards to prevent the
engine from overheating=E2=80=94the very negligence that the widows had all=
eged.<br>
<br>
Nevertheless, government lawyers still cite Reynolds to argue that the
courts should trust the executive on matters of national security.
According to a 2005 study by William Weaver and Robert Pallitto,
political scientists at the University of Texas at El Paso, the Bush
Administration has claimed the state-secrets privilege in recent years
with =E2=80=9Coffhanded abandon.=E2=80=9D By Weaver and Pallitto=E2=80=99s =
count of reported
instances, the privilege was invoked fifty-five times in the half
century before 2001; it has been used more than two dozen times in the
years since. Its heavy use has drawn criticism from members of
Congress, including Senator Arlen Specter, the senior Republican on the
Judiciary Committee. =E2=80=9CWe=E2=80=99re going to look back at this peri=
od of time
two decades from now and see a vast expansion of executive authority,=E2=80=
=9D
Specter told me this month. =E2=80=9CAnd a big part of it is done by the
state-secrets doctrine. Do I think in some cases that the government
uses it inappropriately? Absolutely.=E2=80=9D<br>
<br>
In recent years, Justice Department lawyers have used the privilege not
only to eliminate key pieces of evidence but also to dismiss potential
legal challenges altogether. Last year, a federal appeals court ruled
that a German citizen, Khaled el-Masri, who alleges that, in a case of
mistaken identity, he was kidnapped and tortured by the C.I.A., cannot
sue the United States, because the =E2=80=9Cvery subject matter=E2=80=9D of=
his
lawsuit=E2=80=94America=E2=80=99s extraordinary-<wbr>rendition program=E2=
=80=94is secret. Some,
like Senator Patrick Leahy, the chairman of the Senate Judiciary
Committee, contend that the Administration is using the state-secrets
doctrine to prevent the courts from assessing the legality of
controversial programs. The White House =E2=80=9Chas taken a legal doctrine
that was intended to protect sensitive national-security information
and seems to be using it to evade accountability for its own misdeeds,=E2=
=80=9D
Leahy said in February, during a Senate hearing on the privilege. <br>
<br>
A senior Justice Department official who was authorized to comment told
me that the Bush Administration is trying to protect national-security
secrets, not to shield its activities from scrutiny. A challenge to the
wiretapping program could proceed, he said, provided the surveillance
was =E2=80=9Csufficiently well disclosed.=E2=80=9D But a government documen=
t describing
that surveillance, such as the one Al Haramain received, would not
qualify as disclosure. Only a formal acknowledgment by the government
would suffice. <br>
<br>
Still, in September, 2006, Judge King refused to throw out Al
Haramain=E2=80=99s case on state-secrets grounds, noting that President Bus=
h
and other officials had already confirmed the existence of the
surveillance program. King agreed to bar the classified document from
the case, but proposed that the attorneys for Al Haramain file
affidavits describing their memories of it, which could be used to
prove that Al Haramain had been subjected to surveillance. <br>
<br>
None of the lawyers for the charity who have seen the document would
describe its contents. But Soliman al-Buthi and the two Washington
lawyers, Asim Ghafoor and Wendell Belew, agreed to tell me what they
were discussing on the telephone during March and April of 2004, when
the surveillance appears to have taken place.<br>
<br>
In 2002, scores of prominent Saudis, including Buthi, were named as
defendants in a lawsuit brought on behalf of the victims of September
11th. Ghafoor had agreed to represent the Saudis, and Belew was
lobbying in Washington on their behalf; the three men had several
conversations about the payment of the lawyers=E2=80=99 fees, which Buthi w=
as
helping to co=C3=B6rdinate. I asked whether Buthi might have mentioned any
defendants who could have been of interest to U.S. intelligence. Buthi,
Belew, and Ghafoor all volunteered the same names: Safar al-Hawali and
Salman al-Auda, two radical clerics who have been publicly praised by
Osama bin Laden; and Mohammed Jamal Khalifa, a Jidda businessman who
was bin Laden=E2=80=99s brother-in-law and onetime best friend.<br>
<br>
=E2=80=9CThere=E2=80=99s an argument to be made that designating Al Haramai=
n was a
mistake,=E2=80=9D Jon Eisenberg, an appellate lawyer who is representing th=
e
charity in its wiretapping lawsuit, and who has seen the document, told
me. Still, he said, =E2=80=9Cit is not my role to figure out if they are
terrorists or not.=E2=80=9D In court filings, Al Haramain=E2=80=99s lawyers=
have said
that something in the document suggests that the surveillance was
conducted without a warrant. In Eisenberg=E2=80=99s view, the more suspicio=
us
Al Haramain seemed, the easier it should have been to obtain one. <br>
<br>
When Judge King did not dismiss Al Haramain=E2=80=99s case, the Bush
Administration appealed. Along with public filings to the federal
appeals court in San Francisco, government lawyers included a set of
secret arguments that Eisenberg was not allowed to see. Based on his
knowledge of the document, Eisenberg decided to guess at these
arguments, and counter them.<br>
<br>
Because the document was still classified, anything Eisenberg wrote
about its contents would become =E2=80=9Cderivatively classified,=E2=80=9D =
so he was
obliged to write his brief under supervision=E2=80=94not of the court but o=
f
the Litigation Security Section of the Justice Department, his
adversary. A security officer, Erin Hogarty, explained the special
procedures for the drafting: it must take place at the department=E2=80=99s
offices in San Francisco; Eisenberg could bring no notes with him, and
must use a government computer. Hogarty also said that Steven Goldberg,
one of Eisenberg=E2=80=99s colleagues, could join him but that Tom Nelson,
another lawyer for Al Haramain, could not. According to Eisenberg,
Hogarty later told him that the order about Nelson came directly from
one of the government lawyers working on the case. <br>
<br>
The senior Justice Department official told me that Hogarty had never
been explicitly instructed that Nelson could not participate. Rather,
she was told that because Nelson had not allowed government technicians
to purge his computer of classified information he raised =E2=80=9Cdifferen=
t
security concerns.=E2=80=9D The Litigation Security Section is ostensibly
neutral and independent, but Eisenberg contends that Hogarty, as a
Justice Department employee taking orders from government lawyers
working on the case, had a conflict of interest, and that allowing his
opponents to determine who could contribute to a court filing
undermines the fairness of the adversarial process. The official
disagreed. =E2=80=9CI don=E2=80=99t think this episode even begins to raise=
a serious
issue,=E2=80=9D he said.<br>
<br>
Last June, Eisenberg and Goldberg met Hogarty at the Justice Department
offices in San Francisco and were escorted to a windowless room.
Hogarty took their cell phones and the battery from Eisenberg=E2=80=99s lap=
top.
She supplied them with a government computer. The drafting lasted three
hours. Eisenberg got hungry, and Hogarty offered him a banana from her
lunch. When the brief was completed, Eisenberg and Goldberg printed out
copies for the judges and for the government lawyers; because Al
Haramain=E2=80=99s lawyers did not have security clearance, they were not
allowed to keep a copy of the brief they had just written. Hogarty
assembled the preliminary drafts and said that she would shred them=E2=80=
=94and
Eisenberg=E2=80=99s banana peel, too.<br>
<br>
After the drafting session, Hogarty and Eisenberg met once more, to
wipe his computer of any classified information. As it happened, the
laptop had died of its own accord; Eisenberg and Hogarty agreed to
destroy the hard drive. Hogarty had brought a technician with her, and
he extracted the hard drive and memory board from the laptop. Then he
and Hogarty placed the hard drive on the floor and pounded it with a
table leg.<br>
<br>
Oral arguments before the Ninth Circuit Court of Appeals in Al Haramain
Islamic Foundation, Inc. v. George W. Bush took place in August, 2007,
and focussed almost exclusively on the document. Al Haramain=E2=80=99s lawy=
ers
might think that the document was proof of surveillance, Thomas Bondy,
the government=E2=80=99s lawyer, argued, but they could be wrong. =E2=80=9C=
Although
they think or believe or claim they were surveilled,=E2=80=9D Bondy conclud=
ed,
=E2=80=9Cit=E2=80=99s possible that they weren=E2=80=99t.=E2=80=9D<br>
<br>
=E2=80=9CBasically,=E2=80=9D Eisenberg told me later, the government is =E2=
=80=9Csaying that
when it comes to matters of national security there is no truth. We
will not confirm or deny. So it doesn=E2=80=99t matter what you know.=E2=80=
=9D<br>
<br>
The appeals-court judges ruled in November that, because of the
=E2=80=9Ccascade of acknowledgments=E2=80=9D of the wiretapping program, Al=
Haramain=E2=80=99s
case could not be thrown out on the ground that its subject matter was
a secret. But, after inspecting the document themselves, they rejected
Judge King=E2=80=99s suggestion that affidavits describing it could be used=
in
court, calling that solution a =E2=80=9Cback door around the privilege.=E2=
=80=9D <br>
<br>
The judges sent the case to a district court to decide one final issue.
Without the document or the affidavits describing it, Al Haramain will
have trouble proving that it was subject to surveillance. But Eisenberg
insisted that he was optimistic. =E2=80=9CWe=E2=80=99re still alive,=E2=80=
=9D he said.<br>
<br>
On August 15th, as Eisenberg was delivering his oral arguments in the
appeals court in California, Pete Seda returned to Oregon. He had been
a fugitive for two and a half years, travelling with his wives from
Saudi Arabia to the United Arab Emirates, Iran, and Syria. In his
absence, federal prosecutors had indicted him, along with Buthi, and
when he arrived at the airport in Portland he was arrested. The
indictment focussed on an incident in 2000, in which Buthi had
converted a hundred-and-<wbr>fifty-thousand-<wbr>dollar donation to Al
Haramain Oregon into cashier=E2=80=99s and traveller=E2=80=99s checks, and =
had carried
the money to Riyadh without declaring it at the airport. The foundation
allegedly lied on its tax return to hide the funds. Authorities implied
that the donation was intended for the rebels in Chechnya. (Seda has
pleaded not guilty; Al Haramain=E2=80=99s lawyers say that the money did go=
to
Chechnya, but in support of refugees.) There were no charges of
terrorism or terrorist financing.<br>
<br>
Ibrahim Warde, a professor at the Fletcher School of Law and Diplomacy,
at Tufts, and the author of =E2=80=9CThe Price of Fear,=E2=80=9D a critique=
of the war
on terrorist financing, said that the Al Haramain case is typical of
the Administration=E2=80=99s approach to Islamic charities. =E2=80=9CIt was=
a giant
bait-and-switch game,=E2=80=9D he told me. The government =E2=80=9Cwould in=
itially tout
the connection with Al Qaeda, and then in the end would nail them on
some unrelated infraction having to do with tax evasion or
immigration.=E2=80=9D But Matthew Levitt, the former Treasury Department
official, told me that when a designation is followed by a criminal
indictment without charges of terrorism defense attorneys are too quick
to conclude that their clients are innocent. =E2=80=9CThe fact that someone=
is
designated and then not charged for that activity means nothing,=E2=80=9D h=
e
said. <br>
<br>
One consideration for prosecutors is that winning convictions on
terrorism charges can be difficult. In October, 2007, a major case
brought by the government against the Holy Land Foundation, which
before it was designated, in 2001, was the largest Islamic charity in
the U.S., concluded without a single conviction. Prosecutors had
charged the group with providing =E2=80=9Cmaterial support=E2=80=9D for ter=
rorism. One
of the jurors described the government=E2=80=99s evidence as =E2=80=9Cstrun=
g together
with macaroni noodles.=E2=80=9D <br>
<br>
Jeffrey Breinholt, a senior Justice Department official who is
currently on leave at the International Assessment and Strategy Center,
in Washington, observes that charging suspects with supporting
terrorism might require disclosing secret information in court. Seda=E2=80=
=99s
case signifies a change in tactics for federal prosecutors, Breinholt
told me, toward =E2=80=9CAl Capone-ing=E2=80=9D suspects=E2=80=94charging t=
hem on whatever will
secure a conviction. <br>
<br>
=E2=80=9CIf you charge them for things like we charged the guys in Oregon w=
ith,
there=E2=80=99s necessarily going to be less national-security disclosure o=
f
information,=E2=80=9D Breinholt said. =E2=80=9CIt=E2=80=99s a calculated de=
cision to go after
them for smaller things.=E2=80=9D Breinholt and a Justice Department spokes=
man
both noted the success of a case that was decided in Boston in January,
in which officials from Care International, another Islamic charity
accused of terrorism (and not affiliated with the well-known
humanitarian organization of the same name), were convicted on tax
charges.<br>
<br>
One flaw of this approach is that although it may bring convictions, it
seldom results in substantial jail time. When Seda returned to Oregon,
the U.S. Attorney=E2=80=99s office argued that he should be kept behind bar=
s
pending his trial on tax charges. The prosecutor, Chris Cardani,
insisted that Seda subscribed to a militant brand of Wahhabi Islam and
represented a flight risk. =E2=80=9CThis is a case about radical forms of
religion and the effects it has on people,=E2=80=9D he said in a detention
hearing last summer. <br>
<br>
To demonstrate that Seda was a threat, Cardani called on Daveed
Gartenstein-<wbr>Ross, the young Ashland convert who had worked for
Seda in the late nineties. Gartenstein-<wbr>Ross had since converted
again, to Christianity. He began co=C3=B6perating with authorities,
supplying them with information on Al Haramain, and eventually wrote a
book, =E2=80=9CMy Year Inside Radical Islam.=E2=80=9D<br>
<br>
Gartenstein-<wbr>Ross testified that Seda had been opposed to
terrorism. But he also pointed to disturbing passages in the Islamic
literature that Al Haramain distributed: an appendix in one edition of
the Koran that featured a =E2=80=9CCall to Jihad=E2=80=9D; a book of Islami=
c
guidelines, which declared, =E2=80=9CThe Last Hour will not appear unless t=
he
Muslims fight the Jews and kill them.=E2=80=9D Still, it was not clear that
Seda personally subscribed to these views. =E2=80=9CHe=E2=80=99s a Koranic =
literalist,=E2=80=9D
Gartenstein-<wbr>Ross told me. =E2=80=9CBut if the question is how much he
actually read the Koran, the answer is almost never. He didn=E2=80=99t read
Arabic, and he had trouble reading English. And all of our translations
were English-Arabic.=E2=80=9D<br>
<br>
In the hunt for terrorists and those who support them, intelligence
analysts construct =E2=80=9Clink charts=E2=80=9D to connect a suspicious in=
dividual to
his known acquaintances, to their known acquaintances, and so on=E2=80=94an
exercise in six degrees of separation. (In 2000, Army intelligence
analysts trying to =E2=80=9Cmap=E2=80=9D Al Qaeda reportedly described the =
effort as
=E2=80=9Cthe Kevin Bacon game.=E2=80=9D) In designating Al Haramain Oregon,=
Treasury
Department officials cited =E2=80=9Cdirect links=E2=80=9D with Al Qaeda, bu=
t have never
revealed the precise nature of those links. Stinebower, the former
Treasury lawyer, said she was unaware of any internal definition of
=E2=80=9Cdirect links.=E2=80=9D She wouldn=E2=80=99t discuss the particular=
s of the Al Haramain
designation, but did say, =E2=80=9CIt wouldn=E2=80=99t have been sufficient=
that A
picks up a phone and calls B, and B picks up a phone and talks to C,
therefore A knows C. There would have to be more of a connection than
that.=E2=80=9D <br>
<br>
It seems inevitable that, in seeking to identify and disrupt possible
terrorist threats, U.S. intelligence will rely on a suspect=E2=80=99s circl=
e of
associates and his religious beliefs. But the First Amendment prevents
authorities from prosecuting people solely on the basis of association
or ideology, and espousing radical beliefs is not in itself a criminal
act. <br>
<br>
=E2=80=9CWe=E2=80=99ve put ourselves in a situation where the Department of=
Justice has
jumped into this, saying, If they could be a terrorist, then they=E2=80=99r=
e
guilty,=E2=80=9D Karen Greenberg, the executive director of the Center on L=
aw
and Security at New York University=E2=80=99s law school, told me. =E2=80=
=9CWe don=E2=80=99t
have a body of law that says, If you could be, then you are. If we want
to move to that, then we have to think very long and hard. Because the
risks are immense.=E2=80=9D<br>
<br>
On November 30th, the government lost its bid to keep Pete Seda
detained. =E2=80=9CI hope that I can again be a positive part of the commun=
ity
and continue working to bring peace through understanding,=E2=80=9D Seda sa=
id
in a statement. He is now under house arrest; his trial will begin this
fall. <br>
<br>
Last August, the American Bar Association published a report calling
for reform of the state-secrets privilege. =E2=80=9CThere will finally be a=
n
instance where you=E2=80=99ve cried =E2=80=98state secrets=E2=80=99 so many=
times that a court
will not believe it anymore, and potentially something that is a state
secret will get out,=E2=80=9D Carrie Newton Lyons, a former C.I.A. officer =
who
chairs the national-security committee of the A.B.A.=E2=80=99s Section of
International Law, told me. In January, Senators Ted Kennedy and Arlen
Specter introduced a bill to curtail the Administration=E2=80=99s use of st=
ate
secrets by obliging judges to determine themselves whether evidence is
too sensitive to be used in court, and requiring the government to
submit classified evidence in redacted or summarized form, rather than
barring it completely. Specter objects to the notion that judges must
defer to the executive on matters of secret evidence. =E2=80=9CIt=E2=80=99s=
beyond
arrogant,=E2=80=9D he told me. =E2=80=9CIt=E2=80=99s insulting.=E2=80=9D<br=
>
<br>
In the meantime, Eisenberg is trying to figure out how Al Haramain can
prove that it was wiretapped without reference to either the document
or the affidavits describing it. This week, a district judge in San
Francisco will consider the only remaining issue in the case, an
abstruse legal question about the origins of the state-secrets
privilege. The government has submitted a series of classified filings,
leaving Eisenberg to guess at what they might contain.<br>
<br>
=E2=80=9CThis is the difficulty with classified evidence,=E2=80=9D David Co=
le, a law
professor at Georgetown who is assisting Lynne Bernabei in her efforts
to have Al Haramain=E2=80=99s designation lifted, told me. =E2=80=9CAt the =
end of the
day, you=E2=80=99re fighting shadows. How do you defend against what you ca=
n=E2=80=99t
see?=E2=80=9D<br>
<br>
In October, Bernabei wrote a letter to the Justice Department. The
attorneys representing Al Haramain had been dealing with a novel
quandary of legal ethics. If they had a reasonable belief that any
telephone conversation with Seda or Buthi might be monitored by the
N.S.A., could they talk to their clients without violating
attorney-client confidentiality? Bernabei requested confirmation that
the government was not intercepting her =E2=80=9Cwritten or oral
communications=E2=80=9D with her clients. Two weeks later, she received a
response from the lawyers at the Justice Department. They wouldn=E2=80=99t
confirm or deny. =E2=99=A6 <br>
<br>
<br>
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