In the article, Keefe details the behind-the-scene lawyering in the pending case of Al-Haramain Islamic Foundation, Inc. and Wendell Belew, etc. vs. George W. Bush. The story he has to tell brings home just how deeply the Bush administration has corrupted our judicial system.
Essentially, the troubles underlying this case began in early 2004 when the U.S. Treasury Department seized the assets of a now-defunct Oregon branch of an Islamic charity and declared it to be a “Specially Designated Global Terrorist.” As FBI financial investigator Dennis Lormel told Keefe, the Treasury Department often bases such actions "on media stories" and other untrustworthy evidence which the FBI itself would not think of using.
In such seizure proceedings, the rules laid down by the Treasury Department itself are overwhelmingly loaded against the charity. As Keefe writes, the Treasury Department needs --
less evidence for a designation than they would for prosecution, and they can rely on evidence that would not be admissible in a criminal trial. * * *Keefe reports that so far almost five hundred individuals and groups have been tarred with the Treasury Department's "designation" and, unsurprisingly given the administration's rules, "there has never been a successful challenge in court."
In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own.[emphasis added]
Among the Treasury Department's evidence, it turns out, were illegal secret wiretaps of Americans and others conducted by the Bush administration without a FISA warrant or a showing of probable cause. We know this because Government lawyers inadvertently included within a pile of other documents sent to the charity's attorneys "a summary of intercepted telephone conversations" between two of their own lawyers. (Only the Government and the lawyers can be sure, but some will find it amusing as well as convincing that what the lawyers claim they were discussing was "payment of the lawyers' fees.")
And this is where Keefe's article gets interesting. Nearly two years passed, during which time the charity's lawyers themselves failed to "appreciate the significance of the document." But when the New York Times revealed the existence of the Bush administration's secret and illegal wiretapping program, scales fell from their eyes. The charity filed suit shortly after that.
The Government's initial position was that the suit against it for illegal wiretapping should be dismissed under the so-called "State Secrets" doctrine announced fifty-five years ago in the Supreme Court case of U.S. vs. Reynolds. The Reynolds decision, and by extension the entirety of the so-called "State Secrets" doctrine, has been undermined in the last few years by astounding historical research.
The Reynolds precedent is a monument to an outright lie. Keefe explains that in that case --
the widows of three civilian engineers who died in the crash of an Air Force B-29 sued for negligence. The government would not turn over the accident report, asserting that it contained information about the plane’s secret electronic equipment. However, when the report was declassified, in the nineties, there was no mention of secret electronic equipment. It did reveal that the plane lacked standard safeguards to prevent the engine from overheating—the very negligence that the widows had alleged.Eventually, the Ninth Circuit Court of Appeals declined to dismiss the suit, reasoning that, after all, Mr. Bush himself had admitted in a radio speech that he had authorized the wiretapping. But relying on the same Reynolds "State Secret" doctrine, the court nevertheless barred the charity from introducing the accidental document in evidence or offering a reconstruction of it from the memory of those who saw it.
Nevertheless, government lawyers still cite Reynolds to argue that the courts should trust the executive on matters of national security.
* * *
In recent years, Justice Department lawyers have used the privilege not only to eliminate key pieces of evidence but also to dismiss potential legal challenges altogether. Last year, a federal appeals court ruled that a German citizen, Khaled el-Masri, who alleges that, in a case of mistaken identity, he was kidnapped and tortured by the C.I.A., cannot sue the United States, because the “very subject matter” of his lawsuit—America’s extraordinary-rendition program—is secret.
It is in the section of his article about preparing for the Ninth Circuit appeal court argument over this question that Keefe's article discloses some of the more mind-bending lengths to which our Government now is driven:
- U.S. Justice Department attorneys insisted that because of the "State Secret" claim, they were under no obligation to provide opposing counsel for the charity with a copy of the Government's brief to the court. The Government would submit their written arguments secretly to the court, only. The opposing lawyers had no right to know what the Government was arguing or what case precedents they were citing. They had to "guess."
- The Government also insisted that attorneys for the charity were not free to write their own court briefs alone or in their own offices. Instead, they must use a windowless Government office, compose their answering "guess" brief on a Government-supplied computer, and be supervised the entire time by a Government lawyer. As Keefe explains, "A security officer, Erin Hogarty, explained the special procedures for the drafting: it must take place at the department’s offices in San Francisco; Eisenberg could bring no notes with him, and must use a government computer."
- Furthermore, the charity's lawyers who were to write their clients' "guess brief" had to be approved by the Government. One of the chosen three was, in fact, barred. "Hogarty also said that Steven Goldberg, one of Eisenberg’s colleagues, could join him but that Tom Nelson, another lawyer for Al Haramain, could not. According to Eisenberg, Hogarty later told him that the order about Nelson came directly from one of the government lawyers working on the case."
- At the end of the brief-writing session, the two approved lawyers were allowed to print out two copies, one for the court and one for the Government. But they were prohibited from keeping a copy of their own brief!
- The "approved" lawyers then had to agree to have the laptops they had brought with them destroyed by the Government lawyer overseeing their work. "Hogarty had brought a technician with her, and he extracted the hard drive and memory board from the laptop. Then he and Hogarty placed the hard drive on the floor and pounded it with a table leg."
And that's without even mentioning the over-arching constitutional question at the core of the al-Haramain case: whether we still have a national Government of separate branches of government each with equal but limited powers; or whether the Bush administration has hijacked our Government and transformed it, de facto, into a lawless dictatorship.
Judging from the news report last week of the latest round of court arguments in the case, the Bush administration now is arguing that the courts, also, have no right to know what the Government is arguing. Lawyers for the U.S. Justice Department told a federal district court judge he "can't possibly" make a "judgment on the public record" about whether Congress can limit a president's power grab or whether the president has violated the Constitution. According to the Government's lawyer --
the constitutionality of the law, and the related question of whether it is binding on the president, can't be resolved without delving into operational details whose exposure would damage national security.The a priori reasoning is plain: A president who violates the Constitution because he thinks he is above the law cannot be called to account or stopped by any other branch of Government because, well, because he thinks he is above the law.
Ossama bin Laden himself could not have done more damage to everything the United States once stood for.
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