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BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS

Chapter 8:  TERRORIST SURVEILLANCE PROGRAM OR WARRANTLESS WIRETAPS?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- Fourth Amendment to the United States Constitution

What can you do? If your government is going to do this stuff, they have the guns and they have the jails. At least we're in a democracy. You can file a lawsuit. -- plaintiff's attorney TOM NELSON

These are important, incredibly important issues, with constitutional dimensions, about the president's power to defend the nation from a terrorist attack. -- Department of Justice attorney ANDREW TANNENBAUM

This wasn't quite Watergate.

But there are similarities. Second-rate burglars. State secrets. An office complex overlooking a big American river. The political use of the courts and the Department of Justice to sustain a cover-up. And a corrupt administration.

Jonathan Norling was lying on the couch in his law office on a May morning in 2005. It was too early for the cleaning crew in the office complex situated just across the Willamette River from downtown Portland, Oregon. Yet a man wearing a familiar uniform was at the door. When he saw Norling on the couch, he left. Two months later, Norling was in the building late at night and ran into the same man in the same uniform -- twice, again hanging around the door to his law office. Again the man fled.

"This person clearly wasn't a cleaning crew," Norling told a reporter at The Oregonian. "I know the cleaning crew. They have a cart, and this guy didn't have a cart. I've worked here for seven years and I've worked a lot of late nights. And I never experienced anything like that until Tom was working on this case."

Norling shared office space with his law partner, Tom Nelson. Nelson can't prove it, but the "cleaning crew" were probably federal agents, using sneak-and-peek provisions of the USA Patriot Act to break into the office. Nelson already knew something wasn't right. He would arrive in the morning and find that his computer had been shut down and rebooted, while no other computer or electrical appliance in the office had been turned off. Papers on his admittedly disorderly desk were left in odd places. Even the receptionist joked about night visitors. Nelson had written U.S. attorney Karin Immergut in September 2005, asking if she was aware of any federal surveillance. Immergut had reassured him that no search of his office had been authorized by the U.S. attorney's office in Portland.

Nelson moved his sensitive-case files to his cabin at the foot of Mount Hood. And someone broke in there, disabling the alarm. The technician who came out to repair the system couldn't explain what had happened.

In December, New York Times reporters Eric Lichtblau and James Risen broke a story about the National Security Agency's warrantless surveillance of electronic communication between subjects in the United States and suspicious contacts outside the country. "I wasn't aware of the significance of the documents until I read The New York Times and realized we had a smoking gun that proved the NSA had violated attorney-client privilege and the Fourth Amendment," Nelson said. (Never mind violating the Foreign Intelligence Surveillance Act.)

The "documents" Nelson refers to contained a surveillance log and transcript of warrantless intercepts of privileged communication between a client of his in Saudi Arabia and two lawyers in Washington, D.C. After the Times broke the story and President Bush made a speech admitting (if one is a stickler for the law) to a crime, Nelson prepared to file suit on behalf of his client, who he realized had been a subject of illegal surveillance. He also sent another letter to U.S. attorney Immergut, asking if she was aware of any surveillance targeting him. She assumed Nelson's complaints about clandestine searches referred to the NSA operation reported by the Times. That program, Immergut wrote, operates outside the Department of Justice. She had not been aware of it until she read about it in The New York Times.

Nelson wrote to the NSA, asking for a copy of his file, and was reassured that the agency had no file on him. He sent a second letter, and the agency hedged its response: "Rest assured that safeguards are in place to protect the civil liberties of U.S. citizens. However, because of the highly classified nature of the program, we can neither confirm nor deny the existence of records responsive to your request."

"In other words," Nelson said, "they weren't saying, 'We don't have a file on you.' They were saying, 'If we do, you are not going to get it.'"

Nelson had reason to suspect federal agents had been in his office. He had briefly represented Brandon Mayfield (see Chapter 5) after FBI agents spent days in Mayfield's suburban Portland home, downloading his computer files, photocopying his children's Spanish homework, and leaving telltale footprints on the carpets. Like Mayfield, Nelson was a convert to Islam, and he was acutely aware of the prosecutorial zeal with which the federal authorities were going at the Muslim community.

Nelson didn't have the document the government was after while the "cleaning crew" was tossing his office, though he was aware of its contents. But he obtained a copy after the Times story ran and returned it to the government in an indirect fashion: attached, under seal, to a lawsuit he filed on behalf of the client the NSA had targeted. It was such a "hot doc" that, at the government's request, the judge ordered it locked up in a SCIF -- a sensitive compartmented information facility, of which there are two in the Northwest.

The document that had the feds on orange alert originally arrived in a large file delivered to Washington, D.C., lawyer Lynne Bernabei's mailbox on August 20, 2004. Bernabei was one of a team of lawyers representing the Al-Haramain Foundation. Al-Haramain was at the time Saudi Arabia's largest domestic and international charity, promoting conservative Wahhabi Islamic values and education. It had an annual budget of $30 to $80 million and offices in fifty countries, including one in Ashland, Oregon. Because the document marked "Top Secret" had been sent to her by the Treasury Department, Bernabei assumed it had been declassified. It was a log and transcripts of telephone conversations between two other Al-Haramain attorneys in Washington, Wendell Belew and Asim Ghafoor, and an agent of the Saudi-based charitable foundation, Soliman al-Buthi, III Saudi Arabia.

The leaked document not only compromised the government's warrantless wiretapping program, which violated the Foreign Intelligence Surveillance Act. It also revealed that the staff at the NSA and the Treasury Department's Office of Foreign Assets Control were bunglers who mailed out a top-secret document that ultimately ended up in the hands of a Saudi subject the feds had listed as a "Specially Designated Global Terrorist" -- and also in the hands of a naturalized American citizen from Iran, believed to be living in the United Arab Emirates. Not the sort of behavior that we expect in agencies at the forefront of our Global War on Terror.

It was predictable that Soliman al-Buthi and Perouz Sedaghaty would get copies of the NSA paperwork. Al-Buthi was the subject of the surveillance recorded in the leaked document. He is a Saudi government official who worked as a volunteer for Al-Haramain and was on the Oregon office's board of directors. Sedaghaty was the director of Al- Haramain's Oregon office. When the feds inadvertently mailed the file to Bernabei, she forwarded the material to her clients. The Office of Foreign Assets Control had allowed her one business day, rather than the two weeks she'd requested, to respond to what they'd sent her. So she immediately distributed the file, including the top-secret document, to all parties.

So, long before U.S. district judge Garr M. King ordered the NSA document locked in a secure vault, copies of it were floating around Riyadh. And possibly the UAE. Two of the countries in which the bad guys are plotting our violent destruction, because as G. W. Bush says, they "hate us because we're free."

If bungling bureaucrats at NSA and the OFAC created a security crisis by mailing out classified paperwork, the FBI agents called in to secure the document don't come off as the most nimble foot soldiers in the War on Terror either. In October -- two months after the inadvertent leak -- an FBI agent showed up at Wendell Belew's law office in Washington. The agent demanded the "top-secret" material that Bernabei had sent Belew. Then -- stealing a page from sitcom special agent Maxwell Smart -- the FBI agent warned Belew that he'd better not try to remember anything he'd read in the classified document.

The damage control was a little late.

Belew had sent a copy to The Washington Post's David Ottaway, who was writing about the process the Treasury Department used to designate Specially Designated Global Terrorists. When the FBI requested it, Ottaway returned his copy of the document, as did the other lawyers who had received copies. It's safe to assume that all of them tried not to remember what they'd read. But one copy of the classified document remained in the files of Soliman al-Buthi in Saudi Arabia. And another had been sent to Perouz Sedaghaty, who the government assumed was in the UAE or Iran. Al-Buthi presumably provided the copy that Nelson filed with the lawsuit.

A brief recap.

Months before the Times broke the story about the surveillance program that Vice President Dick Cheney considered one of the "crown jewels" of American intelligence, the NSA sent a copy of the "top-secret" transcript to the Office of Foreign Assets Control. The OFAC mailed it to the attorneys representing the suspected foreign terrorists under surveillance. The attorneys sent copies to their clients in the Middle East, one a Specially Designated Global Terrorist. And to The Washington Post and others on the legal team. Two months later, the FBI sent agents out to retrieve the original and all the copies -- and to order each recipient not to remember what he or she had read. No FBI agent went to Saudi Arabia to seize Soliman al-Buthi's copy and sequester his memory. If they knew where Perouz Sedaghaty was lying low, they didn't attempt to contact him either.

It was a stunning failure for the government.

And a critically important piece of evidence for the plaintiffs.

Lawyers, civil libertarians, and members of Congress can protest and hold hearings about the NSA surveillance program operating outside the law enacted in 1978 to regulate it. But a plaintiff was needed in order to get the program in front of a federal judge who could rule on its legality. A plaintiff, by definition, is someone who was affected or harmed. The American Civil Liberties Union and a group of scholars and journalists had in fact already filed suit in federal court in Detroit, where district judge Anna Diggs Taylor ruled the Terrorist Surveillance Program violated the "Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution and the FISA." But her decision was overturned by the Sixth Circuit Court of Appeals in July 2007, because the plaintiffs had "not shown that they were actually the target of, or subject to, the NSA's surveillance."

Al-Haramain was a different story. "We have proof that our clients were subjects of illegal surveillance," Tom Nelson said. "We also have proof that the government used what they learned about our clients to designate them. Otherwise, the documents wouldn't have been in that file."

***

The National Security Agency's Keystone Kop paper chase would be funny if the legal issues that set it in motion were not so disturbing -- perhaps even alien to American justice. The USA Patriot Act, passed six weeks after the 9/11 terrorist attacks, gives the executive branch broad, unchecked power in many arenas -- including the authority to designate any individual or group a terrorist or terrorist organization. It also includes provisions that allow the federal government to shut down charities and other nongovernmental organizations suspected to be conduits for moving money to terrorists.

Like many of the provisions of the Patriot Act, the power to "designate" marries the best intentions to the worst process. When the Post's David Ottaway looked into how the federal government goes about designating charitable organizations, he found the government freezing the funds of suspect organizations at the beginning of an investigation, essentially a death sentence for the charities. Then the Office of Foreign Assets Control would follow up with an official designation that would close the deal, permanently putting the groups out of business. Charities could appeal in federal district court, but the government's cases are based on classified material the appellants cannot see, so it is rare that the terrorist designation is lifted. The process is flawed in other ways as well. Though the Treasury Department is authorized to designate a group or person as a "global terrorist," there is no legal definition of that term. Nor is there any established procedure to get off the list.

"If the category has no definition, then how would a group who challenges the definition know what it is?" Georgetown Law Center professor David Cole asked the Post. "It is whatever the government says it is."

Al-Haramain of Oregon was shut down because Soliman al-Buthi took $130,000 in traveler's checks and a $21,000 cashier's check out of the United States without declaring them. Al-Buthi didn't deny taking the money out of the country. It had been donated to Al-Haramain by an Egyptian physician who stipulated it be used in a relief effort for refugees in Chechnya, where the Russian Army was engaged in widespread human rights abuses in the brutal suppression of a separatist movement.

"Soliman didn't hide anything," Nelson said. "He walked into a bank, showed a Saudi passport, and withdrew money he said he was taking out of the country." When al-Buthi purchased his traveler's checks, in March 2000, an Arab withdrawing a large amount of money from a U.S. bank wasn't immediate cause for a teller to press the silent alarm button. What al-Buthi did, Nelson argued, was open and transparent, with money going from a bank in Ashland, Oregon, to a bank in Riyadh, Saudi Arabia. When FBI agents tracked down the cashier's check, it had "Donations for Chichania [sic] Refugees" written on it. Al-Buthi did, however, fail to declare the funds when he left the United States.

Nine months later, Perouz Sedaghaty (whose Anglicized name is Pete Seda) made an accounting entry designating the $151,000 drawn from Al-Haramain's account as funds applied to the purchase of a mosque in Missouri. On the financial report that charitable nonprofits are required to file with the IRS, Sedaghaty's account incorrectly entered the Chechen donation as funds applied toward the Missouri mosque. FBI agents reviewed Al-Haramain's financial statements and determined that the money had actually been sent to Chechnya.

It was careless but not criminal, Nelson said. The sort of thing for which companies, nonprofits, and individuals are usually charged and fined or stripped of their nonprofit classification. Yet the expatriation of $151,000 that had been sent to Oregon from Egypt with specific instructions to spend it on Chechen relief, and the incorrect or dishonest accounting entry that followed, was sufficient justification for the Office of Foreign Assets Control to freeze all of Al- Haramain's U.S. assets and begin an investigation in February 2004. In September 2004, the OFAC designated Al-Haramain Oregon a terrorist organization and al-Buthi a "global terrorist." The organization's bank accounts were seized and its real property auctioned off. In February 2005, both men and Al-Haramain Oregon were indicted on three counts, for conspiring to defraud the U.S. government and sending money to Chechnya.

Chechnya is old news that most Americans have long forgotten. But when al-Buthi withdrew $151,000 to send there, the Russian Army was engaged in its brutal campaign to put down the Chechen separatists. The mostly Muslim insurgents in the former Soviet state were capable of acts of great brutality. But the Russian Army, initially under Boris Yeltsin and later under the heavier hand of Vladimir Putin, was the villain. Cities and villages were bombed, mass executions spread fear, and rape was widely used as an instrument of war -- brutal in any culture but particularly effective (and devastating) in traditional Muslim communities, where feminine virtue and modesty are cultural imperatives. The Russians let slip the dogs of war, and Muslim charities and individuals around the world responded, funding relief efforts and in some circumstances providing funds to the separatists. The financial watchdogs of war in the United States, Great Britain, and most of Europe winked and nodded as Muslim donors funded humanitarian relief efforts in communities savaged by Putin's army.

The terrorist attacks on the United States focused the government's attention on the international movement of money. After 9/11, the FBI, CIA, and Treasury Department took a harder look at the financing of terrorism and found that some money used to finance international terrorism had been moved through Muslim charities, particularly outside the United States, and that Saudi Arabia had been a source and nexus of much of that funding. Choking off Muslim funding became unofficial U.S. policy.

Al-Buthi and Sedaghaty faced a 9/11 prosecution on a Chechnya rap.

The United States pressured the Saudis into shutting down the big Al-Haramain operation in Riyadh. With up to $80 million a year moving through it, some money that ended up in its foreign offices clearly found its way into terrorist bank accounts. Nelson said he can't vouch for Al-Haramain's fifty branches. But his guys, he said, are clean. He also said that American intelligence regarding Muslim charities at home and abroad had been sloppy and at times dishonest. Nelson points to the prosecution of the Holy Land Foundation, and Laid Saidi's extraordinary rendition and imprisonment in Afghanistan, are two examples of investigations gone bad -- in Saidi's case, very bad.

The Holy Land Foundation for Relief and Development was the largest Muslim charity in the United States when its assets were seized, in December 2001. Seven of its officials were charged with funding the Palestine-based group Hamas. But odd things began to happen in the courtroom in Dallas. In particular, wiretap summaries of Holy Land Foundation phones, which were presented as evidence in court, didn't match the actual classified transcripts that one of the defendants somehow obtained. One of the summaries included virulent anti-Semitic and anti-Israel comments that even had Jesus Christ calling "Jews and their high priests the sons of snakes and demons," though no such language was found in the actual transcripts. Frustrated because they were unable to see the classified evidence the prosecution was using against their clients, attorneys representing the Holy Land Foundation asked Judge A. Joe Fish to declassify all the wiretap transcripts. Lawyers for the government protested that the declassification would gravely harm national security.

Laid Saidi never made it into a courtroom. Saidi is an Algerian and was the director of Al-Haramain's office in Tanzania when he disappeared in 2003. Tanzanian police had arrested him and escorted him to the border of Malawi. There they turned him over to Malawian police, who delivered him to American agents, who prepared him for extraordinary rendition -- the Bush administration's signature kidnapping and extradition to a country where torture is tolerated. Saidi was blindfolded, his clothes were cut off, he was photographed, and his eyes were covered with tape. Someone inserted a plug in his anus and put a disposable diaper on him, then dressed him and loaded him on an airplane. He would spend fourteen months in a secret U.S. prison in Afghanistan, regularly interrogated about plans to purchase "airplanes," one of the key words intelligence officers began to look for after the airplane attacks of 9/11. Saidi finally got to listen to the audiotape of the transcribed conversation that had landed him in a CIA "black site." In a phone call to his brother-in-law in Kenya, he was mixing English and Arabic to make the English word "tire" plural by adding the Arabic "at" to the end of it. The party transcribing his wiretapped conversation wrote "tayarat" -- Arabic for "airplanes." The on-site translator at the prison recognized the error. Saidi, who had been buying tires, was delivered into the hands of American torturers on a simple translation error.

The Holy Land Foundation might have been moving money to Hamas, but the prosecution ought to have been bound by the rules of evidence to prove that. Laid Saidi's treatment was a violation of human rights law, even if his abductors ultimately proved he was carrying a false passport. Once his captors (and torturers) got their translation straightened out, they returned him home to Algeria. When New York Times reporters Craig S. Smith and Souad Mekhennet questioned a CIA spokesman about Saidi's abduction and imprisonment, he didn't have much to say -- except that the agency doesn't "comment publicly on these kinds of allegations ... and does not condone torture."

Tom Nelson sees these (and other) cases as cautionary tales regarding good-faith prosecution and the quality of evidence the government is willing to use (or even fabricate) when bringing charges against Muslims.

***

The American public will forget the bit players in the Alberto Gonzales U.S. attorney scandal that compromised the integrity of the entire Department of Justice in the spring of 2007, including Gonzales himself, a political appointee for whom lickspittle is almost too generous a description.

James Comey was unforgettable. Ramrod straight and unflinching in the witness chair, he reminded the American public what public service truly means.

Comey, formerly the number two man at Justice under Attorney General John Ashcroft, told a riveting story of a late- night ride to George Washington University Hospital, where Ashcroft was critically ill. With sirens wailing and warning lights flashing, Comey and his security detail were in a race with Alberto Gonzales, who was then Bush's White House counsel, and White House chief of staff Andrew Card, who accompanied Gonzales.

Speaking to the Senate Judiciary Committee, Comey described the March 10, 2004, visit to Ashcroft's bedside as "probably the most difficult night of [his] professional life." Comey "ran up, literally ran up the stairs with [his] security detail." Behaving more like jackals than public officials, Gonzales and Card raced into the hospital room with an envelope. Comey had to stand at the attorney general's bedside to defend him from his other two visitors, who demanded that Ashcroft sign off on a program that Comey, designated acting attorney general while his boss was incapacitated, had already refused to reauthorize. The one-minute exchange that followed might have been John Ashcroft's finest hour:

"And Attorney General Ashcroft then stunned me," Comey recounted. "He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, 'But that doesn't matter, because I'm not the attorney general.'"

Comey wouldn't describe in his testimony the secret program Gonzales and Card wanted Ashcroft to approve. It was, in fact, the NSA's warrantless surveillance program, or some part of it, which the policy shop at the White House designated the "Terrorist Surveillance Program."

The Foreign Intelligence Surveillance Act of 1978 was one of the reforms recommended by the Church Committee. Chaired by Idaho senator Frank Church, the committee first investigated then proposed reforms to address executive branch abuse of intelligence and covert military operations in the years before the Watergate scandal. FISA was passed to place the surveillance programs under control of the federal courts. Under the law, a president, attorney general, or CIA director is required to go to a FISA court and get a "secret warrant" before putting an "American person" under surveillance. When it was passed, the law provided a twenty-four-hour grace period for emergencies, allowing the secret surveillance to be approved by the court one day after it was initiated. In 2001, the Patriot Act extended that time, allowing the NSA to request a warrant seventy-two hours after the surveillance begins. The FISA court almost always accommodated requests for warrants. From the time the bill was signed into law in 1978 until 2004, there had been 14,000 applications. Of which 13,995 were granted.

Yet the Bush administration bypassed all that and decided to go warrantless.

The program Bush and Cheney were running on their own doesn't involve a guy from your local phone company shimmying up your telephone pole. Before FISA was signed into law by President Jimmy Carter, the late Senator Church warned of a surveillance program "so powerful that if turned around on the American people no American would have any privacy left, such [is] the capability to monitor everything.... It doesn't matter. There would be no place to hide. The technological capacity that the intelligence community has given the government could enable it to impose total tyranny."

That was the program FISA was passed into law in 1978 to regulate. By 2004, the NSA surveillance program was far more technologically sophisticated. According to what the public knows about it today, the surveillance system links supercomputers on some twenty military bases across the globe. The computers channel intelligence gathered by giant golf-ball-like radomes to orbiting satellites that direct the electronic information stream to Ford Meade, Maryland. The program is believed to intercept 3 billion communications per day: phone calls, Internet, e-mails, faxes, telexes, microwave permutations of words, phrases, pictures, voices, addresses, phone numbers.

That's what the Bush administration turned on the American people, without going before the FISA court to get warrants. And that's what Tom Nelson, a team of lawyers, and their plaintiffs in Oregon and Saudi Arabia set out to challenge in federal court.

***

The Indian parable of "The Blind Men and the Elephant" could serve as a metaphor for the hearing held in Judge Garr King's Portland, Oregon, courtroom at the end of August 2006. Eight lawyers, two of whom had seen the top-secret NSA document, engaged in a protracted debate about its critical importance to the case each side was trying to make. Lawyers defending the government resorted to the sword of Damocles they routinely use to defend secrecy: Osama bin Laden. In this instance, it was an Oregon mosque and Islamic center "directly linked to Osama bin Laden" and "with ties to al-Qaida" -- claims that Judge King, who had read the top-secret document, rejected.

There was nothing extraordinary about the government's warnings about bin Laden and al-Qaeda, although Nelson calls them completely unfounded regarding Al-Haramain's Oregon operation and Soliman al-Buthi. Jon Eisenberg, another member of the legal team representing Al-Haramain, argued that the DOJ lawyers ought to be required to back up such claims made in open court with evidence.

Yet the lawyers flown in from Washington, D.C., to defend the Bush administration's surveillance policy presented no evidence. Their argument was straightforward: Judge King had to dismiss the lawsuit Al-Haramain had filed against the president and various officials responsible for the warrantless surveillance. Because the top-secret document "is necessary not only for plaintiffs to prove their case but for defendants to present a defense," and because the release or discussion of even a highly redacted version of the document would cause "exceptionally grave damage to the national security of the United States," everyone should shake hands and go home. It was that simple.

Caught in the act of flouting FISA and the Fourth Amendment, the lawyers defending the NSA offered up riddles as defense: "The allegations at issue here are whether plaintiffs were subject to surveillance, and they say the document shows that fact. And that very fact, whether or not they were, is a privileged fact."

One might have expected the judge to respond, "Put cats in the coffee and mice in the tea." Yet Judge King wasn't buying the Lewis Carroll logic. Central to the government's defense was the claim that the Terrorist Surveillance Program was so secret that to admit its existence would put national security at risk. As DOJ lawyer Andrew Tannenbaum advanced that argument, the judge stopped him.

"The TSP program has been the subject of substantial broad disclosures on the part of the Government," Judge King said. "They've aggressively defended the program. They've outlined the nature of the program. There is a forty-two- page white paper supporting the program. How can the very nature, the very subject matter of this case be secret?"

When Tannenbaum argued that reports in the media are not the same thing as official confirmation that a program exists, the judge stopped him again.

"But if the president makes a statement," Judge King asked, "isn't that official? If the attorney general makes a statement, isn't that official? Now if you have filed pleadings in this case in which statements are made on behalf of all of these defendants, can I treat that as official?"

Backed into a corner, the DOJ lawyer's answer was brief: "Yes."

Eisenberg pointed to the absurdity of the secrecy argument by telling the judge he feared the NSA would want to "erase Mr. Nelson's memory."

The Honorable Garr M. King, appointed to the bench by Bill Clinton in 1998, earned his law degree at the University of Utah College of Law in Salt Lake City, then got a doctor of jurisprudence at Lewis & Clark Law School in Portland. Not first in his class at Harvard, Yale, or the University of Chicago, but a judge who understands you don't need a weatherman to know which way the wind blows.

Americans learned in a big way on 9/11 that the world is a dangerous place and that there are people actively plotting and acting to do the country harm. For all the judge knew, Soliman al-Buthi might have been hunkered down in a cave with Osama that very afternoon. But in a constitutional republic governed by the rule of law, it should be incumbent on the government to prove that in an adversarial proceeding where al-Buthi's attorney can stand before a judge, look at the evidence, and defend his client. (In fact, as the case was moving through the federal courts, al-Buthi was the director of environmental enforcement for the municipality of Riyadh. In the summer of 2007, though designated a terrorist by the U.S. government, he was invited to be a special guest at a dinner hosted by the American embassy in Saudi-Arabia.)

Soliman al-Buthi is prohibited by the Saudi government from traveling to the United States, because the government and the royal family (sometimes it's hard to tell the difference) don't want one of their civil servants walking into a prosecution with the deck stacked against him. Perouz Sedaghaty was out of the country when he was indicted in 2004 and hadn't returned by midsummer of 2007, though sources close to him say he will come back to the United States and address the charges spelled out in his 2004 indictment.

Tom Nelson, who made a career as a utilities regulation lawyer and would probably otherwise be retired and riding his motorcycle across the Great American West, has found a second career. Or, more correctly, a second career found him. "This stuff affects me in a visceral way," Nelson said. "In this case, the federal government broke the law. If they had a FISA warrant, they would have filed it with Judge King and that would have been the end of it. But they engaged in illegal surveillance. They violated attorney-client privilege. Then they took what they got and used it. They used it! They used it in a civil proceeding, and my client never had a chance to defend himself."

Nelson is one of a half dozen people who has read the NSA transcript of conversations between al-Buthi and his Washington attorneys. He sees in it "a false positive" that the Treasury Department used to designate his client a terrorist. He wants a day in court to make that argument.

Jon Eisenberg, a constitutional lawyer from San Francisco who is on the trial team with Tom Nelson, is addressing issues far larger than Soliman al-Buthi and Perouz Sedaghaty: government secrecy and, more important, the division of powers defined in the first two articles of the Constitution.

Eisenberg directed the judge to a specific passage in FISA: "An aggrieved person who has been subject to electronic surveillance in violation of FISA shall have a cause of action against any person who committed such a violation."

"Now if the government has the right to keep secret forever that there was a violation of FISA," Eisenberg asked the judge, "then what meaning does [that section of the law] have?" If an individual can't prove he was subject to illegal surveillance, how does he have a cause of action?

Eisenberg reminded the court that the Congress writes the laws and the executive implements them. The president, he said, could have gone to Congress after 9/11 and said, "FISA is obsolete. Get rid of it. Give us the power we need." Eisenberg reminded the court that Attorney General Gonzales was very frank about why he didn't ask Congress for the authority to "thumb FISA." Gonzales and Bush feared that Congress would say no. "So their solution was, do what they knew that Congress wouldn't let them do."

The case that bears the title Al-Haramain Islamic Foundation, Inc. v. George W. Bush, President of the United States, et al., has been consolidated with other similar claims and moved to federal court in San Francisco.

Jon Eisenberg told Judge King he doesn't want to unveil any state secrets or lay bare the technical workings of NSA's surveillance program. "We're not looking to reveal classified documents. We want a decision on whether or not the president's warrantless wiretapping program is unlawful," Eisenberg said. "That's our goal here."

POSTSCRIPT

On August 15, Perouz Sedaghaty, aka Pete Seda, came home. He had provided U.S. attorney Chris Cardani his flight itinerary. Two FBI agents took him into custody before he reached the Portland airport terminal. On the same day, a three-judge appellate panel in San Francisco heard oral arguments on the illegal wiretapping suit filed by Seda, al- Haramain, and al-Buthi. The judges were skeptical and at times impatient with Department of Justice attorneys defending the NSA wiretapping program.

A week later Pete Seda appeared before Judge Thomas Coffin in Eugene with a request to be released on bond. Cardani said Seda was a flight risk and cited alleged terrorist funding by al-Haramain offices in India and Indonesia. After a full-day bond hearing that included expert and fact witnesses, the judge said he would issue a ruling in two weeks after Seda answered questions about his travel in the Middle East.

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