Suing George W. Bush: A bizarre and troubling tale

Judge King suspended further proceedings on the standing issue until the pending 9th Circuit appeal was decided. That took nearly a year, during which time all of the four dozen cases nationwide challenging various aspects of the warrantless surveillance program were consolidated and transferred to the federal District Court in San Francisco for decision by a single judge, Vaughn Walker.

Meanwhile, the government attorneys demanded that we give them our computers to enable DOJ technicians to "wipe" the computers clean of any electronic remnants of secret material that might remain somewhere in the computers' hard drives. Because of attorney-client confidentiality considerations, we refused, proposing instead to do the wiping ourselves in whatever manner the government technicians suggested. We weren't about to let the DOJ go rummaging through our files. Negotiations on the "wiping" logistics dragged on throughout the winter.

Come spring, we turned our attention to the 9th Circuit appeal, where the appellate court would decide whether the state secrets privilege required our lawsuit to be thrown out entirely. In June of 2007, the DOJ attorneys filed two opening briefs in the 9th Circuit. One brief was publicly available, to which we would be allowed to file a publicly available responsive brief. The other was filed in secret, under seal, for the judge's eyes only. The bad news for us was that we would not be permitted to see the government's secret brief; the (sort of) good news was that we could file our own secret brief in response.

Rebutting arguments you've not been allowed to see is a talent that isn't taught in law school. I consulted Kafka's "The Trial," looking for helpful tips, but found none. I tried guessing at what might be in the government's secret brief and then hazarding a response in our own. Because of Judge King's prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.

The government attorneys referred us to DOJ employee Erin Hogarty, a Washington-based member of the DOJ's Litigation Security Section. I contacted Hogarty and said I needed to confer with her and review the documents we had filed under seal with Judge King the prior year. We made arrangements to meet at the federal courthouse in San Francisco on June 15, 2007.

Hogarty and I convened in a windowless interior room adjacent to Judge Walker's chambers. She had brought our previous secret filings with her. She set me up in the room with the filings, took my cellphone from me, instructed me that I could take no notes either then or later, and then left me alone while she sat outside the closed door. After a while, I called Hogarty back into the room and we discussed the logistics for drafting the secret appellate court filing.

Hogarty instructed me that the drafting session would take place in the DOJ's San Francisco offices under her supervision. I told her that, in addition to myself, I wanted another member of our Oregon legal team to attend the session. Before I even told her who I wanted, she volunteered "not Tom Nelson." A key member of the team, Nelson had helped prepare the affidavits we had filed the previous October and had hand-carried them to the courthouse. Hogarty said that Nelson had been "uncooperative," which I took to refer to strong objections he had voiced to the DOJ rummaging through his computer files. Hogarty then named one of our other Oregon team members -- Steven Goldberg -- as the only other attorney who could participate in the drafting session.

We chose a date: June 26, 2007. She then laid out ground rules: I could not prepare any advance notes that contained any classified information. I could not discuss any classified information over the telephone with Goldberg prior to the drafting session. Goldberg and I could only discuss the drafting "face to face" -- which was a problem, since I was in Oakland and he was in Portland. We would be put in a room at the DOJ's San Francisco offices, where we would be loaned a government computer on which to work.

On the morning of June 26, Goldberg and I met Hogarty in the lobby of the San Francisco federal building. She took us through a locked door and into the DOJ offices, on a floor that was strangely deserted. She ushered us into a small interior room lined with bookshelves that had been completely emptied, except for a few chairs, a large table, a dusty telephone, a laptop computer and a printer. She took our cellphones.

At that point, we brought up the subject of Tom Nelson. Goldberg told Hogarty that we wanted to be able to telephone Nelson on a secure line during the drafting session, or, alternatively, have him fly down from Portland immediately to join us personally. Hogarty politely refused. Goldberg asked on whose instructions she was acting, and she named one of the DOJ attorneys, Andrew Tannenbaum -- although, as she put it, Tannenbaum had received the instructions from "higher up."

We went forward without Nelson, drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer -- that is, under the auspices and control of our adversary in the legal case. We could print out drafts but couldn't take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty's supervision. She would personally give the judges their copies, which nobody else -- not the court clerks, not the judges' staff attorneys -- would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty's safe was "our" copy.

Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become "derivatively classified" and thus unlawful for us to possess. I wondered whether this meant that the portion of my brain that remembers the Document is also "derivatively classified," making its presence in my skull unlawful.

Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. I produced an initial draft without using notes. Goldberg edited and added to my draft, then I reedited, and so on. We took the brief through several drafts, printing out hard copies to work from as we went along. As lunchtime approached, I got hungry, which Goldberg mentioned to Hogarty during a bathroom break. Hogarty kindly offered me a banana. When we returned to our drafting, I ate the banana and set the peel alongside our stack of hard-copy drafts.

Finally, we printed out five copies of our finished brief, which I laid on the table alongside the stack of drafts and the banana peel, and I called for Hogarty. I told her: "Here's everything, even the banana peel." Hogarty said she would shred the drafts and the banana peel. (She may have been joking about the banana peel, but I couldn't be sure.) She returned our cellphones to us and escorted us out of the building into the San Francisco sunlight.

We submitted our 9th Circuit briefs on July 3, 2007. In the publicly available brief, we argued that the state secrets privilege shouldn't apply to the Al-Haramain case for several reasons. Among them was the Document's accidental disclosure to the plaintiffs, which meant the surveillance of them was no longer a secret. We also argued that we only want to use the Document to confirm the previously disclosed fact of the surveillance, and not to reveal any of its operational details, so the lawsuit did not threaten national security.

I can't reveal, of course, what we argued in our secret brief. The government subsequently filed a secret reply brief -- which we weren't allowed to see.

The court scheduled a hearing on the appeal for Aug. 15, 2007. At the same time, the court would hear oral arguments in a lawsuit filed by the Electronic Frontier Foundation (EFF) against telecommunications carrier AT&T, challenging AT&T's wholesale disclosure of its customers' e-mail and telephone records to the government as part of the warrantless surveillance program.

On Aug. 8, 2007 -- more than nine months after I'd drafted the secret supplemental brief we'd filed with Judge King -- the DOJ people came to "wipe" my laptop clean of any electronic remnants of the brief. We'd finally agreed on the logistics: Erin Hogarty would bring a DOJ technician from Washington, D.C., and we'd meet in the windowless room adjacent to Judge Walker's chambers in San Francisco, where the technician would do the deed in my presence. It turned out to be more of a "whacking" than a "wiping."

Next page: At one point in the Bush attorney's mind-boggling rebuttal the judge interjected: "Sounds like Donald Rumsfeld"