NSA surveillance and the dream police

Original URL: https://www.theregister.com/2007/08/23/nsa_surveillance_al_haramain/

To what extent is memory subject to the state secrets doctrine?

Posted in Legal, 23rd August 2007 20:24 GMT

Memories are very personal things, over which we feel an intimate sense of ownership. Some people, such as spies, are sworn to secrecy over this or that incident, but, as one event or another washes over us, we typically aren't responsible one way or another for them. They are the historical cloth out of which we are cut. They are what makes us who we are.

This isn't science fiction. Who else could possibly own one's memory, anyway?

One would think that, at the very least, one could testify under oath about whether something did or did not in fact occur, through no fault of one's own, as part of one's personal historical record to establish one's relative guilt or innocence. Or, maybe not - the second of the two cases, argued before the Ninth Circuit Court of Appeals in San Francisco last week, concerned a situation that could have been culled from a legal theorist's note book, and which seems the more interesting of the two cases.

Uh, that memory is classified, your honor

That case, Al Haramain v Bush, had been consolidated with the other, EFF v. AT&T, due to common issues of law and fact, since both cases address the tricky legal issue of how a citizen may establish "standing" to sue the government for illegal warrantless surveillance when that very surveillance is considered by the executive branch to be a state secret.

The cases differ in one important respect, however. Whereas in EFF the evidence of illicit government snooping is purely circumstantial, based on the testimony of an AT&T employee's description of an NSA safe room located in San Francisco, in Al Haramain the plaintiffs appear to have, through sheer Bush administration stupidity, direct evidence of allegedly warrantless government surveillance.

That evidence, though, exists now in the memory of the plaintiffs and their attorneys. To what extent should the courts allow testimony of human recollection, even if only to establish legal standing, when that recollection itself concerns top secret information, and is potentially subject to the state secrets privilege?

Al Haramain, a defunct Saudi Islamic charity with an American branch formerly based in Ashland, Oregon, had been accused of maintaining ties to Al Qaeda. At one time, in those frenzied years after the 9/11 attacks when the group realized that it was being watched by the FBI, the foundation had sought guidance from the DOJ on how to stay off of whatever terrorist watchlists were then floating in government circles.

Inadvertently, in August 2004, during the course of whatever legal sparring went on between the foundation's attorneys and the government, the government handed over to the organization a call log, stamped Top Secret on every page. The calls were between the foundation's director and its attorneys - communications that themselves might well be covered by attorney-client privilege.

Copies of the call log circulated within the charity and even back to the foundation's headquarters in Saudi Arabia, until eventually the FBI realized its mistake and demanded the return of the document and whatever copies could be found, but nothing came of it until late 2005 when the New York Times broke the story on a massive NSA surveillance operation that, at least in part, targeted American citizens.

The organization then realized the nature of the logs, and filed a lawsuit in February 2006 alleging that it had been subject to illicit surveillance by the NSA. Of course, by then The Document, as it is now known, existed for purposes of litigation in the recollections of those who had read it.

The attorney for the government in the case, Thomas Bondy, argued vehemently that those recollections themselves should be barred, even to establish a threshold issue such as standing, because to do so would be the equivalent of allowing The Document, which is stored in a secure location in San Francisco and transported under armed guard, itself into evidence.

Bondy, much as Gregory Garre had in the EFF case, argued that once the government asserts the state secrets privilege, the case must be dismissed. It is, for all intents and purposes, an absolute bar to litigation, he claimed.

And that in a nutshell is the problem - does the state secrets privilege protect even unconstitutional state behavior? If the only requirement to assert the privilege, as the government claims, is that a judge - in secret, of course - determine the existence of a secret program, no constitutional analysis need follow. Under this logic, national security will always trump the Bill of Rights.

The judges - McKeown in particular - focused more in the Al Haramain arguments on the accidental nature of the government disclosure, and the undeniable fact that were it not for that inadvertent disclosure, the plaintiffs would never have known about the existence of direct surveillance against them, rather than some ill-defined general surveillance program.

Of course, the existence of a massive, 1984-style totalitarian surveillance program is considerably spookier than isolated incidents of government misconduct, but for the purposes of establishing standing, a plaintiff needs to assert individualized harm. Such inadvertent disclosure is not considered a waiver of the privilege, since once the government found out about it, it quickly sought the return of the documents.

A legal privilege is not an absolute bar to disclosure. Privileges may be considered waived if not asserted, and privileged information may still be discoverable by an opposing party if it would be impossible to obtain the information in any other way.

Document... er..what document?

This is why the government had to assert that allowing the plaintiffs to testify about their recollections of the documents would be the equivalent of allowing the document itself into testimony, to create an absolute shield around the very existence of the program the document reveals. Never mind that the President has acknowledged its existence to the press. Even if the plaintiffs can establish for purposes of standing that they were surveilled, the argument goes, they have no way of knowing whether or not it was approved by the FISA court and therefore legal.

The judges pressed Bondy about why a redacted version would not suffice for determining such a preliminary issue as standing - even one reduced to articles and pronouns, for example? Nope - once again, the existence of the program itself could not be revealed, whether it was already in the public domain or not. Sure you remember The Document, but the public record will never be allowed to acknowledge that, even to establish your own innocence from some half-baked terrorism charge.

And those are your stateside constitutional protections. If you're rotting in Gitmo or some CIA black site, good luck, pal.

Whichever way the relatively liberal Ninth Circuit goes on this case, both sides have already pledged to take the case to the Supreme Court. Although Jon Eisenberg, the attorney for Al Haramain, had a tougher time before the court than the attorney for the EFF, the cases had been consolidated and there was no real reason for the judges to revisit earlier arguments. For that same reason, Bondy largely escaped the derision occasionally piled by the judges on the Deputy Solicitor General, Gregory Garre, in the EFF arguments.

Ultimately, the direct evidence of surveillance in the Al Haramain case provides the strongest argument yet to establish standing against the the assertion of the state secrets privilege - more so than the circumstantial evidence of generalized surveillance postulated in EFF. If first-hand knowledge - or, more accurately still, an admission of an adverse party - is insufficient to establish individual standing, whatever will be?

It is, as Eisenberg has said, the last case standing. ®

Burke Hansen, attorney at large, heads a San Francisco law office