Judge refuses to give FBI custody of classified document

A federal judge in Oregon has refused to hand over for safekeeping to the FBI a classified document that may show that the NSA conducted warrantless electronic surveillance on an Ashland, Ore., charity that the government alleges had ties to Osama bin Laden. U.S. District Judge Garr King sided with charity attorney Steven Goldberg, who argued that the FBI is a defendant in the case and therefore not a neutral party that can be entrusted with the document. The judge instead has temporarily placed the document with federal prosecutors in Seattle until he can make a decision as to how the material should be handled.

Thomas Nelson, who also represents the charity, al-Haramain Islamic Foundation Inc., gave the document to the judge in February as part of a lawsuit he has filed against the Bush administration alleging that the NSA conducted illegal eavesdropping on conversations between charity codirector Suliman al-Buthe and his American attorneys, Wendell Belew and Asim Ghafoor. The intelligence was later used to target the charity, Nelson’s complaint alleges.

According to the Washington Post and other sources, Treasury Department officials—who were investigating the foundation for terrorist ties—inadvertently gave a copy of the classified document, marked “top secret” and dated May 24, 2004, to an al-Haramain attorney, as part of a routine disclosure of documents the government was citing to designate the charity as a terrorist organization. In May 2004, the attorney gave the document to Belew and Ghafoor, who also represented the charity. Belew in turn gave a copy of the document to a Post reporter. In November 2004, FBI agents took the document back from Belew and the Post reporter saying it contained highly sensitive national security information, according to the Post.

Nelson won’t say how he obtained a copy of the document except to say he did so legally. He asked King to review it under seal, “out of an overabundance of caution,” which didn’t prove misplaced. Last week, during a conference call with al-Haramain attorneys and Justice Department lawyers from Oregon and Washington, D.C., King noted that a government security specialist had examined the document’s classification level and concluded that it had to be placed in a secure compartmented information facility (SCIF). Since his court didn’t have such a facility, King offered to send it either to the FBI’s SCIF in Portland or to the U.S. attorney’s SCIF in Seattle.

Al-Haramain attorney Goldberg objected to the document “being left with the FBI,” noting that the FBI “is a defendant in this lawsuit.” And, Goldberg added, “we’re dealing with a document that may involve criminal behavior by that defendant.”

Justice Department lawyer Anthony Coppolino tried to convince the judge that handing the document to the FBI for safekeeping would in no way compromise it, but the judge was unmoved.

“What if I say I will not deliver it to the FBI, Mr. Coppolino?” asked King.

“Well, your honor,” Coppolino responded, “we obviously don’t want to have any kind of confrontation with you; we want to work this out, but it has to be secured in a proper fashion.” After some more to-ing and fro-ing, King ruled that the document be placed in the U.S. attorney’s SCIF in Seattle for a couple of weeks until he can decide how to deal with it.

The document in the al-Haramain case is significant because it’s the only material so far that may provide details of the administration’s secret NSA warrantless eavesdropping program. The company that publishes the Oregonian newspaper last week filed a motion in U.S. District Court in Oregon to unseal the document.

Lawyers for the Oregonian Publishing Co. argued that it is in the public interest to know the contents of the document that could prove the existence of the potentially illegal domestic spying program.

The Justice Department told lawyers involved in the case that it will oppose any attempts to unseal documents and will ask the court to bar the company from intervening in the case.

In March 2000, charity codirector al-Buthe left the country with $130,000 in travelers checks that was donated for Chechen refugees. In February 2004, the feds froze the foundation’s assets. The NSA, Nelson says, intercepted calls between al-Buthe and his lawyers between February and April 2004.

The complaint states that the government used the intercepted information against the charity, resulting in the designation of the charity and al-Buthe in September 2004 as terrorists. Then in February 2005, both were indicted for illegally taking the money out of the country. A federal judge last September dropped the case against the charity but preserved the government’s right to bring criminal charges against the organization in the future. Nelson points out that there has been no terrorism indictment against the charity or al-Buthe, who remains a fugitive.

The document, wrote Charles F. Hinkle, the publisher’s lawyer, “may contain evidence of arguably unlawful conduct on the part of the U.S. government against U.S. citizens.”

There is a “broad and legitimate public interest” in the contents of the document, Hinkle wrote, asserting the right of the press and public to have access to them. Hinkle further argues that because Nelson did not indicate that the document is classified, they are not protected by laws shielding classified information from disclosure in criminal cases.

Nelson says that he is agnostic about the Oregonian’s motion. “We are neutral whether it’s unsealed or not,” Nelson says. “To the extent there are any attorney-client communications in the sealed documents, we want them redacted.”

As reported in U.S. News, Nelson and his family and colleagues believe that on numerous occasions, the government may have searched his premises without a proper warrant, though the U.S. attorney in Oregon has assured the lawyer that the FBI would not conduct a search without consent or a court order. The NSA has declined to provide Nelson any information.

Hinkle says the Oregonian and the public deserve full disclosure.

“If the government carried out an illegal and unconstitutional program,” he said, “then we think it’s very important that the public know about that. ”

Chitra Ragavan and Liz Halloran