An Islamic charity is banking on public statements by Bush administration officials to give it standing to sue the government for warrantless wiretapping, according to a new complaint the charity filed Tuesday.
A 2007 speech by an FBI official is the linchpin in Al-Haramain Islamic Foundation's continuing effort to prove that the U.S. government illegally monitored phone calls between one of the charity's directors and two of its U.S.-based lawyers.
Efforts to prove those allegations have been hampered by the fact that Al-Haramain has been barred from using, or even discussing publicly, information contained in a classified document accidentally given to the charity by the government in 2004. But nonclassified evidence of surveillance in the new complaint may bolster the charity's argument that it deserves to use the secret document.
In October 2007, speaking at the Money Laundering Enforcement Conference in Washington, D.C., FBI Deputy Director John Pistole mentioned that the government had surveilled Al-Haramain, the complaint states.
After thanking the bankers in attendance for providing financial information that helped to initiate the probe into Al-Haramain, Pistole went on to say that the government had also used "other investigative tools -- like records checks, surveillance, and interviews of various subjects." The prepared remarks are also posted on the FBI's Web site.
The U.S. government, which considers Al-Haramain a source of funding for terrorists, froze the charity's assets in 2004 and alleged the group had funneled money to Chechen fighters associated with al-Qaida. Al-Haramain, in turn, sued the government alleging it had been illegally wiretapped.
Government lawyers have repeatedly argued in court that they could neither confirm nor deny whether agents spied on Al-Haramain, because "to do otherwise when challenged in litigation ... would severely undermine surveillance activities in general."
Last year the 9th U.S. Circuit Court of Appeals ruled in favor of the government's argument that the mistakenly turned-over document falls within the state secrets privilege, which is designed to prevent the disclosure of information that could harm national security. The court left open the question of whether an exception to the state secrets rule exists under the Foreign Intelligence Surveillance Act.
U.S. District Court Judge Vaughn Walker, who next received the case, tentatively dismissed Al-Haramain's case earlier this month because the charity, unable to use the secret document, couldn't prove it was surveilled. Yet Walker found that an exception to the state secrets privilege does exist under FISA, and left the door open to plaintiffs to prove they had standing to sue under that exception.
"Plaintiffs should have the opportunity ... to establish that they are 'aggrieved persons' within the meaning of [FISA]," he wrote in the July 2 ruling. "In the event plaintiffs meet this hurdle, the court will have occasion to consider the treatment of the sealed document."
Charles Miller, a spokesman for the Justice Department's civil division, said that the DOJ was reviewing the amended complaint and declined to comment further.
Evan Lee, a professor at Hastings College of the Law and a federal court specialist, said he was uncertain whether the complaint would now succeed. The new filing helps close the "evidentiary circle," he said, but perhaps not entirely, given that Al-Haramain still hasn't shown whether surveillance occurred without a warrant.
Now, Lee said, the question is to what extent Walker will allow Al-Haramain to use the classified document to substantiate its complaint. The judge appears to have some discretion, Lee said: "The ball is back in Walker's court."
Jon Eisenberg, lead attorney for Al-Haramain, said the government has the burden to prove it acted with a warrant. In an earlier filing, he wrote that "as this litigation has subsequently unfolded, we have demonstrated in public and sealed filings how the document and other materials show the warrantless nature of the surveillance."
In addition to Pistole's speech, Tuesday's complaint points to a sequence of events that occurred in 2004. In February of that year, the Department of the Treasury announced it had frozen Al-Haramain's assets pending an investigation.
Over the next four months, according to the complaint, two U.S.-based lawyers for Al-Haramain spoke over the phone with Soliman al-Buthi, a director at the international charity's Oregon office who was staying in Saudi Arabia at the time.
During those conversations, al-Buthi mentioned the names of three people: a man married to one of Osama bin Laden's sisters and two clerics whom bin Laden claimed had inspired him, according to the complaint. One of the Al-Haramain lawyers involved in the calls, Asim Ghafoor, was representing all three in a suit brought by victims of the Sept. 11 terrorist attacks against a number of Saudi Arabian entities.
Three months later, the Treasury Department announced that it had named Al-Haramain a "specially designated global terrorist," citing direct links with bin Laden.
Taken together, the complaint states, the accumulated evidence shows the government relied initially on financial information to make what they called "a preliminary designation" of Al-Haramain as a terrorist group, then used the illegally wiretapped phone calls to name the charity a "specially designated global terrorist."
According to an April article in The New Yorker magazine, attorneys familiar with the mistakenly divulged classified document have said in court filings that it described the phone conversations with al-Buthi.
No future hearings have yet been set in the case. Eisenberg said that the next step is unclear, because there is no precedent for making a motion under FISA for the in camera review of a document the government claims is protected by the state secrets privilege. While Eisenberg said he wants to make such a motion, and that DOJ attorney Anthony Coppolino wants to make a motion to dismiss, he said it's likely that Walker will hold a case management conference to hash out how to proceed.
"We're in uncharted waters," he said.
