Sunday, August 12, 2007

A Case So Shielded One Side Is in the Dark

Published: August 13, 2007

San Francisco

Jon B. Eisenberg knows something so secret that the government will let him write it down only in a secure facility.

Mr. Eisenberg is suing the government on behalf of clients who say they were illegally wiretapped by the National Security Agency. Yet he was required to write an appellate brief in a government office, supervised by a Justice Department security officer.

“We were forbidden from bringing pre-prepared notes into the room,” Mr. Eisenberg wrote in an e-mail message in late June, the day after he and his colleague Steven Goldberg spent three hours at the offices of the United States attorney here, preparing the secret brief.

“We were not allowed to keep a copy of what we wrote,” Mr. Eisenberg continued. “Our drafts were retained by the security officer for shredding. We were allowed to print out five copies of the final document: one for each judge, one for the government attorneys, and one to be retained” in a Justice Department safe. “Not even the judges’ staff attorneys will be permitted to see the document.”

The brief was filed in an appeal that will be heard here on Wednesday by a panel of three federal judges. At its center is a document that Mr. Eisenberg’s clients, an Islamic charity and two of its lawyers, say proves that their international communications were the subject of N.S.A. eavesdropping in the spring of 2004.

How the court here, the United States Court of Appeals for the Ninth Circuit, decides to deal with the document may determine whether the courts will ever rule on the legality of the wiretapping program.

Last month, the federal appeals court in Cincinnati dismissed a separate challenge to the wiretapping program, saying the plaintiffs there, including journalists and lawyers, could not prove they had actually been subject to surveillance and so could not show the kind of direct and concrete injury needed to establish what lawyers call standing. And a new law may have cut off the ability of other plaintiffs to sue over new surveillance.

But Mr. Eisenberg’s clients, al-Haramain Islamic Foundation and two of its lawyers, say they are in an exceptional position — thanks to government bungling.

In August 2004, the Treasury Department inadvertently gave them a copy of a classified document they say proves they were subject to wiretapping without court approval that spring. The F.B.I. soon retrieved it, but Mr. Eisenberg seems to have what the government refers to as a “mental photocopy.”

The argument this week involves two consolidated cases, one a class action against AT&T for what the plaintiffs say was its role in aiding the N.S.A., the other the Haramain case against the government.

The government’s fundamental argument in both cases is that national security concerns require dismissal, under the so-called state secrets privilege.

“Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged,” government lawyers wrote in the public version of a brief filed last month in the Haramain case.

The government has made additional arguments as well — in classified briefs that Mr. Eisenberg and his colleagues have not been allowed to see.

A decision last month from another federal appeals court, in Washington, complicates the government’s position. That case involved claims of wiretapping in Myanmar in 1993, and the government sought to dismiss the suit on state secrets grounds.

The majority of the divided three-judge panel in Washington rejected what it called “a ‘heads I win, tails you lose’ approach to state secrets.”

The government’s theory, Judge Judith W. Rogers wrote for the majority, was that “whenever the plaintiff lacks information about his claim, the complaint must be dismissed” — as in the Cincinnati appeal. “But as soon as any information is acquired, it becomes too risky to introduce the evidence at trial” — as in the Haramain case.

“Neither the Supreme Court nor this court has adopted such an all-or-nothing approach,” Judge Rogers wrote, allowing part of that suit to proceed to trial.

As for Mr. Eisenberg, he is still scratching his head over what national security litigation has become.

“So, it’s like this,” he said in the e-mail message. “Yesterday, under the auspices and control of my litigation adversaries, at their offices and on their computer, I wrote a brief, of which I was not allowed to keep a copy, responding to arguments which I was not permitted to see, which will be met by a reply which I will not be permitted to see.”

“Yes,” he said, “I’d say that’s the most bizarre brief-writing experience of my career.”

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