Suing George W. Bush: A bizarre and troubling tale

U.S. officials went to extremes to stifle our legal challenge to Bush's warrantless surveillance -- but a federal judge says the program is criminal, anyway.

By Jon B. Eisenberg

Read more: George W. Bush, AT&T, Terrorism, FBI, Telecommunications, CIA, Opinion, National Security Agency, Jon B. Eisenberg

July 9, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

The story of how Al-Haramain's lawyers negotiated the journey thus far to Judge Walker's ruling -- a team of seven lawyers that includes me -- sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Call me Alice -- because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I'll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.

The secret document

FISA requires a warrant for electronic surveillance inside the U.S. for intelligence gathering. President George W. Bush secretly violated FISA for nearly six years, starting shortly after the terrorist attacks of 9/11. FISA makes those violations felonious and provides for civil liability to the victims. I am one of seven lawyers in Oregon and California representing three of those victims in Al-Haramain Islamic Foundation Inc. v. Bush, a civil lawsuit against the president.

The plaintiffs are Al-Haramain -- a defunct Islamic charity based in Oregon -- and two lawyers who represented Al-Haramain in 2004 during proceedings by the Treasury Department's Office of Foreign Assets Control (OFAC) to declare Al-Haramain a terrorist organization, the primary consequence of which was to freeze its assets. (This effectively put the organization out of business.) Of the four dozen lawsuits challenging various aspects of Bush's warrantless electronic surveillance program, the Al-Haramain case is unique because we have proof that our clients were actually wiretapped and thus can satisfy the legal requirement of "standing," or grounds to sue -- meaning we can show they were victims of the unlawful conduct for which they are suing. Nobody else has been able to produce such proof.

Our proof is a top-secret classified document, which the government accidentally gave to Al-Haramain's lawyers in August of 2004. We call it "the Document." It appeared in a stack of unclassified materials that the lawyers had requested from OFAC. Six weeks later, after the government realized its blunder, FBI agents personally visited each of the lawyers and made them return their copies of the Document. But the agents made no effort to retrieve copies that the lawyers had given to two members of Al-Haramain's board of directors, who lived outside the United States.

I can't publicly reveal what's in the Document because, well, it's a secret. I would be committing a crime -- a violation of the Espionage Act of 1917 -- if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.

The FBI vs. the judge

Along with the complaint (the formal pleading that starts a lawsuit), which we filed in February of 2006 in the Oregon federal District Court, we submitted the Document. The government's first response was to try to seize the Document from the court. On March 17, 2006, as we were holding our first all-hands meeting of the Al-Haramain legal team in Portland, we received a telephone call from a Department of Justice attorney, advising us that FBI agents were en route to the federal District Court building to confiscate the Document. We immediately lodged a protest with the assigned judge, Garr King, who scheduled an emergency telephone conference with him and all counsel. The FBI agents retreated.

During the emergency hearing, DOJ attorney Anthony Coppolino demanded that the Document be turned over to the FBI for storage in a top-secret repository called a Sensitive Compartmented Information Facility, or SCIF. To my astonishment, Judge King responded: "What if I say I will not deliver it to the FBI, Mr. Coppolino?" A clash of constitutional powers was brewing. Agents of the executive branch were threatening to invade the files of the judicial branch. The judge was resisting, almost daring them to.

It was the executive branch that blinked. After a pause, Coppolino said: "Well, your Honor, we obviously don't want to have any kind of a confrontation with you; we want to work this out." We all agreed that the Document would be held in a nearby SCIF to which Judge King would have free access.

This was the beginning of a bizarre journey that has not yet ended. Since then, for nearly two and a half years, we have been attempting to use the Document to confirm our clients' standing to sue under FISA and thus test the legality of President Bush's warrantless surveillance program. More broadly, we want the courts to discredit the so-called unitary executive theory of presidential power, which holds that the president has exclusive authority over matters of national security and may disregard laws like FISA that impose checks on presidential power. First, however, we have had to get past a major obstacle used by the Bush administration to stand in our way.

The state secrets privilege

The state secrets privilege, which is rooted in a 1953 Supreme Court case, allows the government to refuse in civil lawsuits to disclose classified evidence that is a state or military secret. In extreme cases, where the very subject matter of the lawsuit is secret, the lawsuit may be thrown out entirely.

Soon after the Document's place of reposit was resolved, the government asked Judge King to throw out our lawsuit pursuant to the state secrets privilege, a tactic used aggressively by the Bush government. We opposed that request, arguing that the Document isn't a secret any longer, since we and our clients have seen it. The government attorneys insisted that the Document is still a secret no matter who knows about it, and further insisted that the warrantless surveillance program itself remains secret -- never mind that the New York Times revealed the program in December of 2005 and soon thereafter the president publicly admitted its existence.

By this time, in a burst of healthy paranoia, we had destroyed all our copies of the Document, and the government wouldn't give us access to the copy held in the SCIF. What would Judge King do? It's no small thing for a judge to take on the president in matters of national security. Judge King came up with a compromise: In a ruling issued on Sept. 7, 2006, he denied the government's request, but also denied us access to the copy in the SCIF. Instead, he said, we could proceed to demonstrate standing by filing secret affidavits describing the Document from memory.

Laptop lunacy

The government lawyers appealed Judge King's ruling to the 9th Circuit Court of Appeals. But they blundered: They failed to file an immediate request to suspend the lower court proceedings that Judge King had authorized -- our showing of standing with secret affidavits describing the Document from memory. For two months we quietly worked on our written showing. By the end of October, having completed most of the drafting, all we had left to do was prepare our secret affidavits describing the Document from memory, along with a short supplemental secret brief explaining how the affidavits established standing. On Oct. 27, 2006, I flew to Portland from my home in Oakland, laptop computer in hand, to finish the work with co-counsel. The Oregon attorneys prepared the secret affidavits; I wrote the supplemental secret brief on my laptop. Three days later, we filed our documents with the district court.

The government attorneys were enraged. We'd caught them off guard. They wrote to Judge King and requested an immediate hearing, arguing we had prepared our secret papers and taken them to the courthouse without complying with CIA directives that require certain top secret documents to be "carried only in approved containers by authorized couriers" and "transmitted electronically only through 'specially designated and accredited communications circuits secured by an NSA-approved cryptographic system and/or protected distribution systems.'"

In fact, we'd only done what Judge King had said we could do. In a responding letter to the judge, we also pointed out that CIA directives don't apply to us because we aren't CIA employees. Nevertheless, in another moment of fear, we destroyed our drafts and notes for the secret filings. We no longer had copies of the secret documents we had filed.

During a short hearing, Judge King absolved us of wrongdoing but ordered that, in the future, we would have to confer with the DOJ attorneys before preparing secret filings. At the end of the hearing, the government attorneys demanded that we relinquish any electronic versions of the secret documents we had filed. The judge ordered all counsel to confer on this, too, and "see what you can work out." These two orders set the stage for some of the most bizarre experiences of my 29-year legal career.

Next page: I wondered whether the portion of my brain that remembers the Document was also "derivatively classified," making its presence in my skull unlawful