Government Hands Proof of Spying To Lawyer, Then Wants It Back

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Recently the 6th U.S. Court of Appeals (no, that's not where the Heretics burn in open tombs for eternity- that's the 6th Circle of Hell, although there are similarities) threw out a case challenging President "Herr" Bush's domestic wiretapping program on the grounds that they could not prove that they were affected by the program. This is fortunate for the government as they are also the one with the list of those they were (allegedly) illegally wiretapping and they aren't eager to go posting that information on their blogs. So that's quite a pickle- you don't have standing to sue the government unless you're affected by the wiretapping and the government won't tell you IF you were affected by the wiretapping so that you can then sue... them. Fortunately for Wendell Belew he got this document one day...

Way back in 2004, before we had ever even seen the words "President "Herr" Bush's domestic wiretapping program" written down, Mr. Belew was an attorney for the U.S. Branch Office of the Saudi Arabian charity Al-Haramein, which had then had its U.S. assets frozen by the government. Belew was one of many lawyers working to keep the charity off of a U.S. Treasury Department watch list. On August 20, 2004 another lawyer at the charity noticed a document marked "Top Secret" amongst the myriad documents they'd received from the Treasurey Department and gave a copy of it to Belew as well as sending a copy back to Saudi Arabia (for future reference, the government HATES it when you do that). The document was a log of phone conversations between the charity's lawyers and Saudi-based Soliman al-Buthi, director for the charity. Despite protestations of innocence for himself (al-Buthi says "I feel that Islam is best spread by wisdom not by arms or violence.") and his charity, the organization was placed (and still remains) on the watch list.

Shortly after that the FBI showed up, demanded the document back from Belews, and insisted that the lawyer not attempt to remember the contents of the document (hopefully the agents in question had the good grace to look embarrassed for asking that). Then, in 2005, The New York Times broke the story about the domestic spying (I mean "wiretapping") program and it was only then that Belew realized why the government wanted their document back so badly. "I got up in the morning and read the story, and I thought, 'My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA," says Thomas Nelson, who represents Al-Haramain and Belew. "So we decided to file a lawsuit." The lawyers gathered the copy of the document from Saudi Arabia and filed suit in U.S. District court last year. They sought damages from the government of $1 million each for Belew and Ghafoor, and the unfreezing of Al-Haramain's assets, because that action relied on the allegedly illegal spying.

You with it so far? The gist is that the government says you can't sue unless you have proof that you were spied upon when they had earlier HANDED PROOF of spying (albeit accidentally) over to a potential plaintiff, who is now more 'actual' than 'potential'. The government still refuses to admit whether the plaintiffs were or were not surveilled (which is just a cool word, regardless of context) ESPECIALLY whether they were or were not surveilled (ahhh) under the Terrorist Surveillance Program (or TSP- much shorter than the Terrorist, Lawyers, Passing Acquaintances, and Anybody Else We Feel Like Surveillance Program, or TLPAaAEWFLSP).

The document was quickly yoinked out of the courtroom and put in a special Justice Department secure room (I picture the computer room with the crazy floors from the movie Mission Impossible) because it is still double-plus Top Secret. The lawyers who filed suit aren't even allowed to see the document, only file declarations, under seal, of their recollections of its contents. What the hell is that about? It's like a witness to a murder not being allowed to see atnd point at the defendant in court, but reduced to sketching him from the witness stand.

An interesting aspect of the case (one of many) is that if the government was correct, and the surveillance was lawful (i.e. THEY GOT A FREAKIN' WARRANT) then the U.S. District judge would have been obliged to dismiss the suit out of hand, which has not happened. Keep an eye on this one.

Details, redux




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