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Administration employed extraordinary secrecy in defending NSA surveillance
NY Times
January 26, 2007

The Bush administration has employed extraordinary secrecy in defending the National Security Agency's highly classified domestic surveillance program from civil lawsuits. Plaintiffs and judges' clerks cannot see its secret filings. Judges have to make appointments to review them and are not allowed to keep copies.

Judges have even been instructed to use computers provided by the Justice Department to compose their decisions.

But now the procedures have started to meet resistance. At a private meeting with the lawyers in one of the cases this month, the judges who will hear the first appeal next week expressed uneasiness about the procedures, said a lawyer who attended, Ann Beeson of the American Civil Liberties Union.

Lawyers suing the government and some legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege.

Justice Department officials say the circumstances of the cases, involving a highly classified program, require extraordinary measures. The officials say they have used similar procedures in other cases involving classified materials.

In ordinary civil suits, the parties' submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.

At the meeting this month, judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records.

In response, Joan B. Kennedy, a Justice Department official, submitted, in one of the department's unclassified filings, a detailed seven-page sworn statement last Friday defending the practices.

"The documents reviewed by the court have not been altered and will not be altered," Ms. Kennedy wrote, and they "will be preserved securely as part of the record of this case."

Some cases challenging the program, which monitored international communications of people in the United States without court approval, have also involved atypical maneuvering. Soon after one suit challenging the program was filed last year in Oregon, Justice Department lawyers threatened to seize an exhibit from the court file.

This month, in the same case, the department sought to inspect and delete files from the computers on which lawyers for the plaintiffs had prepared their legal filings.

The tactics, said a lawyer in the Oregon case, Jon B. Eisenberg, prompted him to conduct unusual research.

"Sometime during all of this," Mr. Eisenberg said, "I went on Amazon and ordered a copy of Kafka's ‘The Trial,' because I needed a refresher course in bizarre legal procedures."

A federal district judge in the case, Garr M. King, invoked another book after a government lawyer refused to disclose whether he had a certain security clearance, saying information about the clearance was itself classified.

"Frankly, your response," Judge King said, "is kind of an Alice in Wonderland response."

Questions about the secret filings may figure in the first appellate argument in the challenges, before the Sixth Circuit, in Cincinnati, on Wednesday. The three judges who will hear the appeal met with lawyers for the Justice Department and the American Civil Liberties Union on Jan. 8 in a judge's chambers in Memphis.

"The court raised questions about the procedures the government had used to file classified submissions in the case and the propriety and integrity of those procedures," said Ms. Beeson, associate legal director of the A.C.L.U., which represents the plaintiffs in the appeal.

"They were also concerned about the independence of the judiciary," given that "the Justice Department retains custody and total control over the court filings." Ms. Beeson said.

Nancy S. Marder, a law professor at the Chicago-Kent College of Law and an authority on secrecy in litigation, said the tactics were really extreme and deeply, deeply troubling.

"These are the basics that we take for granted in our court system," Professor Marder said. "You have two parties. You exchange documents. The documents you've seen don't disappear."

A spokesman for the Justice Department, Dean Boyd, said employees involved in storing the classified documents were independent of the litigators and provided "neutral assistance" to courts in handling sensitive information. The documents, Mr. Boyd said, are "stored securely and without alteration."

The appellate argument in Cincinnati will almost certainly also concern the effects of the administration announcement last week that it would submit the program to a secret court, ending its eavesdropping without warrants.

In a brief filed on Thursday, the government said the move made the case against the program moot.

Ms. Beeson of the A.C.L.U. said the government was wrong.

At least one case, the one in Oregon, is probably not moot. It goes beyond the other cases in seeking damages from the government, because the plaintiffs say they have seen proof that they were wiretapped without a warrant.

In August 2004, the Treasury Department's Office of Foreign Assets Control, which was investigating an Oregon charity, al-Haramain Islamic Foundation, inadvertently provided a copy of a classified document to a foundation lawyer, Lynne Bernabei.

That document indicated, according to court filings, that the government monitored communications between officers of the charity and two of its lawyers without a warrant in spring 2004.

"If I gave you this document today and you put it on the front page of The New York Times, it would not threaten national security," Mr. Eisenberg, a lawyer for the foundation, said. "There is only one thing about it that's explosive, and that's the fact that our clients were wiretapped."

Ms. Bernabei circulated the document to two directors of the charity, at least one of them in Saudi Arabia, and to three other lawyers. She discussed them with two more lawyers. A reporter for The Washington Post, David B. Ottaway, also reviewed the document.

The full significance of the document was apparently not clear to any recipient, more than a year before The New York Times disclosed the existence of the N.S.A. program in December 2005.

The F.B.I. learned of the disclosure almost immediately in August 2004, Judge King said at a court hearing last year, but made no effort to retrieve copies of the document for about six weeks.

When it did, everyone it asked apparently returned all copies of the document. In a statement reported in The Post in March, for instance, Mr. Ottaway said he the F.B.I. had told him that the document had "highly sensitive national security information."

"I returned it after consulting with Washington Post editors and lawyers, and concluding that it was not relevant to what I was working on at the time," Mr. Ottaway said.

In a sworn statement in June, a lawyer who had the document, Asim Ghafoor, said the bureau took custody of his laptop computer "in order that the document might be ‘scrubbed' from it."

The computer was returned weeks later.

In February 2006, the charity and the two lawyers who say they were wiretapped sued to stop the program, requesting financial damages. They attached a copy of the classified document, filing it under seal. They have not said how they came to have a copy.

Three weeks later, the lawyers for the foundation received a call from two Justice Department lawyers. The classified document "had not been properly secured," the lawyers said, according to a letter from the plaintiffs' lawyers to the judge.

As Mr. Eisenberg recalled it, the government lawyers said, "The F.B.I. is on its way to the courthouse to take possession of the document from the judge."

But Judge King, at a hurriedly convened hearing, would not yield it, and asked, "What if I say I will not deliver it to the F.B.I.?"

A Justice Department lawyer, Anthony J. Coppolino, gave a measured response, saying: "Your Honor, we obviously don't want to have any kind of a confrontation with you. But it has to be secured in a proper fashion."

The document was ultimately deposited in a "secure compartmented information facility" at the bureau office in Portland.

In the meantime, copies of the document appear to have been sent abroad, and the government concedes that it has made no efforts to contact people overseas who it suspects have them.

"It's probably gone many, many places," Judge King said of the document at the August hearing. "Who is it secret from?"

A Justice Department lawyer, Andrew H. Tannenbaum, replied, "It's secret from anyone who has not seen it."

He added, "The document must be completely removed from the case, and plaintiffs are not allowed to rely on it to prove their claims."

Judge King wondered aloud about the implications of that position, saying, "There is nothing in the law that requires them to purge their memory."

Mr. Eisenberg, in an interview, said that was precisely the government position. "They claim they own the portions of our brains that remember anything," he said.

In a decision in September, Judge King ruled that the plaintiffs were not entitled to review the document again but could rely on their recollections of it. In October, they filed a motion for summary judgment, a routine step in many civil litigations. In a sealed filing, they described the classified document.

Government lawyers sent Judge King a letter saying the plaintiffs had "mishandled information contained in the classified document" by, among other actions, preparing filings on their own computers.

In a telephone conference on Nov. 1, Judge King appeared unpersuaded. "My problem with your statement," he told Mr. Tannenbaum, "is that you assume you are absolutely correct in everything you are stating, and I am not sure that you are."

Mr. Boyd of the Justice Department said the government "continues to explore with counsel ways in which the classified information may be properly protected without any intrusion on the attorney-client privilege."

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