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2006-03-23

The Return of Black Bag Searches? Oregon Attorney on Why He Feels Federal Agents Broke into His Home and Office to Conduct Clandestine Searches

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Attorney Thomas Nelson discusses his lawsuit against the National Security Agency and his evidence that the Bush administration’s secret domestic surveillance is much broader than reported and may include secret physical searches. [includes rush transcript]

New questions are being raised over whether the Bush administration’s warrantless domestic spy program is more extensive than has been acknowledged. This week, US News & World Report revealed the Bush administration attempted to authorize government agents to perform physical searches without court warrants. A government official said FBI Director Robert Mueller objected to the proposal, "not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches."

In a few minutes we’re going to be speaking with someone who alleges they’ve been subjected to these physical searches. But first, we go back a month to Attorney General Alberto Gonzales. On February 6th, Gonzales appeared before the Senate Judiciary Committee to explain the Bush administration’s domestic eavesdropping program.

  • Attorney General Alberto Gonzalez being questioned by Sen. Patrick Leahy (D-VT), February, 2006.

Well, weeks later Gonzales wrote a follow-up letter attempting to clarify his testimony. Referring to his remark that the President has only authorized domestic wiretapping, Gonzales wrote: "I did not and could not address . . . any other classified intelligence activities. I was confining my remarks to the Terrorist Surveillance Program as described by the President."

Gonzales" letter prompted Bruce Fein, a former government lawyer who served under three Presidents, to comment: "It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn’t told anyone about."

Today we speak with someone who says he has been subjected to another surveillance program. Thomas Nelson, is an attorney based in Portland, Oregon. In a letter to a district US Attorney in September, Nelson wrote: "In the past nine months I and others have seen strong indications that my office and my home have been the target of clandestine searches." Nelson believes these searches are related to his representation of a terror suspect.

  • Thomas Nelson, attorney based in Portland, Oregon.

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: In a few minutes, we’re going to be speaking with someone who alleges he’s been subjected to these physical searches. But first, we go back a month to Attorney General Alberto Gonzales. On February 7, Gonzales appeared before the Senate Judiciary Committee to explain the Bush administration’s domestic eavesdropping program. Here, he is being questioned by Democratic Senator Patrick Leahy.

SEN. PATRICK LEAHY: Well, then, let me ask you this: under your interpretation of this, can you go in and do mail searches? Can you go into emails? Can you open mail? Can you do black bag jobs? And under the idea that you don’t have much time to go through what you describe as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that, of Americans?

ALBERTO GONZALES: Sir, I’ve tried to outline for you and the committee what the President has authorized, and that is all that he has authorized.

SEN. PATRICK LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? Just — that, you can answer yes or no.

ALBERTO GONZALES: There is all kinds of wild speculation about what the —

SEN. PATRICK LEAHY: Did it authorize it?

SEN. ARLEN SPECTER: Well, let him finish.

ALBERTO GONZALES: There is all kinds of wild speculation out there about what the President has authorized and what we’re actually doing. And I’m not going to get into a discussion, Senator, about —- about hypothetical -—

SEN. PATRICK LEAHY: Mr. Attorney General, you’re not answering my question. I’m not asking you what the President authorized. Does this law — you’re the chief law enforcement officer of the country. Does this law authorize the opening of first-class mail of U.S. citizens? Yes or no, under your interpretation?

ALBERTO GONZALES: Senator, I think that — again, that is not what is going on here. We’re only focused on communications — international communications, where one part of the communication is al-Qaeda. That’s what this program is all about.

SEN. PATRICK LEAHY: You haven’t answered my question.

AMY GOODMAN: Democratic Senator Patrick Leahy questioning Attorney General Alberto Gonzales last month. Well, weeks later, Gonzales wrote a follow-up letter attempting to clarify his testimony. Referring to his remark that the President has only authorized, Gonzales wrote, "I did not and could not address any other classified intelligence activities. I was confining my remarks to the terrorist surveillance program, as described by the President."

Gonzales’s letter prompted Bruce Fein, a former government lawyer who served under three presidents, to comment, "It seems to me he’s conceding there are other N.S.A. surveillance programs ongoing that the President hasn’t told anyone about."

Well, today we’re going to speak with someone who believes he’s been subjected to another surveillance program, Thomas Nelson. He’s an attorney based in Portland, Oregon. In a letter to a district U.S. Attorney in September, Nelson wrote, "In the past nine months, I and others have seen strong indications that my office and my home have been the target of clandestine searches." Nelson believes these searches are related to his representation of a terror suspect. In a broadcast exclusive, Thomas Nelson joins us from a studio in Portland, Oregon. We welcome you to Democracy Now!

THOMAS NELSON: Thank you, Amy. Good to be here.

AMY GOODMAN: It’s good to have you with us. Can you tell us what you believe happened to you?

THOMAS NELSON: Well, beginning in about January or February of last year, there were increasing indications that both my office in Portland, Oregon, and later my home, had been visited. And the indications were cumulative and to the point where one of my officemates, a person with whom I share the office, another attorney, on several occasions found a person in the office, going — in our general office going to my office, who didn’t appear to be authorized to do so. These events continued, including indications that our home had been visited in our absence, because of anomalies with the burglar alarm, to the point where the more I thought about it, the more I thought I should raise this to somebody.

My concerns were in part related to my prior representation of Brandon Mayfield, who had similar visits by law enforcement personnel when he was wrongly accused of being involved in the Madrid train bombing. He, of course, was exonerated. But in that interim, he and his family noted that his home and his office had been visited. They had concrete evidence of that, and ultimately the F.B.I. admitted to it. I assume that the same thing was happening to me, and I wanted at least to register an objection with the United States Attorney, who is responsible for conducting or overseeing those kinds of searches. Apparently, however, the N.S.A. was at that time conducting operations also, and I now believe that it was the N.S.A., not the F.B.I., that was involved.

JUAN GONZALEZ: Could you give us some more examples of incidents that you think were clearly indications that there had been unauthorized visits?

THOMAS NELSON: Yes. Backing up, the — when nobody’s in the office, the janitorial crew comes in, generally. They will come in if somebody’s there, but they normally come in after nobody’s there. And when they come in, they do not disturb any papers or deal with any of the documents or other items. On a number of occasions, however, beginning again in January or February of last year, I would come in and note that my materials had been moved around, had been displaced.

Then, it escalated to the point where on several occasions — I think three — I noted that my computer had been changed. I normally left my computer on; in one instance, I came in, it was off. On a second instance, when I came in, the computer had been rebooted, but because there was a floppy in the A: drive, it stopped rebooting, and so it didn’t come on again, with an error message saying, "Take the disc out of the A: drive and it will continue rebooting." I hadn’t rebooted it. I hadn’t turned it off.

After that, Mr. Norling, who is an attorney and a former partner of mine — we continue to share office space — on two or three occasions found a person who is not a member of or didn’t appear to be a member of the cleaning staff, coming into our office late at night. In one instance, 2:00 a.m., coming into the general offices, turning on all the lights, when Mr. Norling was trying to get a nap on his couch. Those events continued in that fashion.

After that, I was working on a case, as you indicated in your lead-in to this story, involving a person accused of being a terrorist. I took all of my files up to our home in Zigzag, which is a mountain community approximately 50 miles east of Portland. And when I did that, we noted on, I think, two occasions that there was an anomaly in the alarm system, where the power had been cut, but the authorities, the alarm company, didn’t call us. It’s part of their agreement with us that when there is a cut in power supply, they will call us. They didn’t do it, didn’t leave a message anywhere. So we called them, and we asked, "What’s going on here? Why didn’t you call us?" And all we got was stonewalling and stalling. My wife, as a matter of fact, waited for the better part of a night for a tech representative from the alarm company to call back. Never called back, never got a hold of us.

I raised the issue with the office, first with the security personnel at the office, and they told me they’re not going to talk to me, so they referred me to the building owner. And the building owner’s manager and I had a sit-down over coffee, and I said, "What’s going on here? Why are these things happening? I think somebody’s coming in my office." Again, this was pre disclosure of the N.S.A. activities. Again, I didn’t get satisfaction.

So, as a result of all of these factors, I thought it best to raise the issue publicly — or it’s certainly not publicly, but privately with the U.S. Attorney for the District of Oregon, indicating that we were concerned, that our office and our home were being visited and searched at night, or in our case, at home when nobody was there.

AMY GOODMAN: We’re talking to Thomas Nelson, attorney based in Portland, Oregon, who believes the government has been conducting clandestine searches of his home and office. He represents several terror suspects, and we’ll ask him about them in his lawsuit against the National Security Agency in a minute.

[break]

AMY GOODMAN: Our guest is Thomas Nelson, an attorney in Portland, Oregon, who believes that government agents have conducted clandestine searches of his home and office. Juan?

JUAN GONZALEZ: Mr. Nelson, you have a lawsuit that’s been filed against the N.S.A., where you allege that you’ve got clear evidence of intercepts. What can you tell us about that lawsuit and your decision to file it?

THOMAS NELSON: Certainly. The lawsuit alleges that the N.S.A. engaged in what we think are illegal intercepts or wiretaps of communications between two attorneys in Washington, D.C. and an individual in Saudi Arabia, who was at that time the director of an Oregon corporation called the Al-Haramain Islamic Foundation, Inc. And we, in our complaint, allege that those intercepts occurred between February — at least February — and May of 2004, and that the intercepts were, once they were obtained, were used by the government in a — if you will — a secret manner, now not so secret, but in a secret manner to harm the interests of the corporation and, of course, the attorneys who were talking to the director.

There’s two issues here. There’s, number one, the illegal intercepts. And there’s, number two, the attorney-client issue, because the communications that were occurring were between the an attorney, on the one hand — two attorneys, on the one hand, and a director of the corporation, on the other.

AMY GOODMAN: Can you explain exactly — I mean, this is very significant — the evidence that you have? Looking at a Christian Science Monitor piece, it says that of all the lawsuits that are suing the N.S.A., it looks like yours may provide the federal courts with the most detailed glimpse yet into the clandestine counterterrorism effort, and that’s because the biggest challenges for these cases, which have been filed in New York, Michigan and California, is that plaintiffs don’t have access to records of highly classified government surveillance activities and, therefore, can’t be sure they were personally subjected to covert phone-tapping or email reading by the U.S. government. But yours, the Oregon suit, may manage to leap over that imposing legal hurdle, because you’ve apparently seen these phone logs and other top-secret records that were inadvertently provided to you. How were they inadvertently provided?

THOMAS NELSON: Yeah, that’s something I really am very uncomfortable discussing, because we did file a document with the court when we filed our complaint, and the document was placed under seal, based on our request. We wanted to make sure that we didn’t cross any lines and we didn’t disadvantage our clients. But let me say this, Amy, that we have specified chapter and verse, time and place, involving intercepted communications between the attorneys and the client. How that — I think there’s been some coverage nationally regarding at least one aspect of that and some allegations, and if you want to go back, take a look at the Dave Ottoway report in the — I think it’s March 3 issue of the Washington Post, where he talks about his obtaining a document that, according to that article, was classified and how he had it for awhile, then the F.B.I. came and brought it back. I’m not saying that we have the same document, and I’m not saying we don’t. I’m just saying that there was a document out there that apparently had chapter and verse in it.

Our document or our material is, of course, under seal. The local paper, The Oregonian, has moved to open the — unseal the document, and the United States government has been opposing that, and I expect it will oppose it very vigorously. So, I can’t really get into the substance of that document.

JUAN GONZALEZ: Now, your involvement or problems apparently with the government date back several years, since back in the late 1990s, when a Saudi Arabian charity was challenged by the government as a possible group involved in money laundering for Chechen rebels. Can you talk about that a little bit?

THOMAS NELSON: I’ll be happy to talk about that. The corporation was a straightforward Islamic charity. Basically, its primary mission was to distribute Islamic literature and make contact with people who were interested in Islam, and it did that through a prayer house in Ashland, Oregon. It also had a large number of religious volumes that it would pass out to people, send to people, who requested them. And they would basically try to do the outreach that — in a missionary fashion, in a low-key missionary fashion. The corporation went along fine until — I think it was 2004, when investigations were started.

What the government has alleged early on was that the corporation was engaged in some form of terrorism, without specifying it. But then they did a — they went to indict the corporation, and they didn’t indict them for anything related to terrorism. Rather, they indicted the corporation and the director in Saudi Arabia for taking some money out of the country without declaring it to customs officials. No mention of terrorism.

We have asserted all along that the corporation has nothing to do with terrorism. As a matter of fact, it was a branch of a Saudi Arabian charity called Al-Haramain, that itself has been dissolved by the Saudi Arabian government, and now those charitable activities are being undertaken by — under direct supervision of the Saudi Arabian government. But in any event, we have contended throughout that there’s no basis for any allegation that the Al-Haramain organization in Oregon was involved in any way in terrorism. As a matter of fact, when the corporation was formed in 1999, long before 9/11, specific in the articles of incorporation was a statement by its co-founder, Pete Seda: "We abhor all forms of terrorism. We oppose all forms of terrorism."

Those people who know the individuals involved — Pete Seda, Soliman Al-Buthe and others, including a Zionist rabbi down in Ashland — know that these are people of peace and people who want to do nothing more than outreach. As a matter of fact, Mr. Al-Buthe, who was indicted for taking the money out of the country, he currently is employed by the city of Riyadh as a assistant director of beautification. Basically, he’s the flower guy, as I call him. He is responsible for the second annual Riyadh Flower Festival. He has been investigated by his own government. His own government, of course, is strongly opposed to and opposed by al-Qaeda. The fact that he continues to hold a government job, notwithstanding what we think are spurious United States government allegations, says a lot.

AMY GOODMAN: And on the issue of Brandon Mayfield, you were one of his attorneys?

THOMAS NELSON: Yes. I was early on. Brandon and I go back probably ten years prior to his arrest. Before I became a law student and went to law school, then got out of law school, I mentored him through that process. So when Brandon was arrested, I got a call from the U.S. Attorney’s office saying, "Do you know Brandon?" And I said, "Of course, I do." They asked me down. I talked to Brandon. And his concern at that time, frankly, wasn’t so much about the criminal proceedings. He was being held as a material witness to the Madrid train bombings. His concern was his family.

I’m not a criminal lawyer. So I told him, "No, the first thing you have to worry about is getting yourself a criminal lawyer." We made an appearance, Brandon and I and the United States Attorney and the F.B.I. agents, in a secret proceeding in front of Judge Jones, at which point I said Mr. Mayfield needs experienced expert criminal representation. So, I told his honor that I would go do that, and I did that. I then went and visited with his family. And during the two weeks that Brandon was incarcerated, I —

AMY GOODMAN: And just to remind our viewers and listeners, Brandon Mayfield, right, picked up after the attacks in Spain. They said they found his fingerprints, although they ultimately exonerated him and said that they were wrong.

THOMAS NELSON: That’s right. At that time, it was a terrible time. And this goes— kind of ties into the story you were talking about today, because in my first meeting with the family in their home over in Beaverton, which is west of Portland, they told me that they had seen indications over the last several weeks that there were people coming in their house when they weren’t there, things like doors being locked that they hadn’t left locked, other indications that their materials had been dealt with.

Ultimately, of course, Mr. Mayfield — during that process, during that two-week period, there was a lot of hysteria, some of it generated by the Federal Bureau of Investigation. There are two quotes that stick in my mind, one to Michael Isikoff of the Newsweek magazine, where the Federal Bureau of Investigation unnamed source said that the Mayfield fingerprint was an "absolutely incontrovertible match." Those were three words quoted. Another report in the L.A. Times said that it was a "bingo match." These things were coming out when Mr. Mayfield’s family was living out in Beaverton with an enormous amount of pressure on them and under a time when the judge had put a gag order on everybody, including me, not to talk about anything secret in the case, and the F.B.I. was out leaking this stuff.

AMY GOODMAN: And Brandon Mayfield has now sued the government. But we just have 30 seconds, Tom. In summing up, if you believe that your offices or home are being repeatedly broken into or spied on, surveilled by the U.S. government — yes, you filed a suit; it may be the most promising suit of all those that have been filed to challenge the government on this — but what can you do?

THOMAS NELSON: We can — we just put down our head and charge forward. I intend to, on my own personal issue of coming into my office and home, I intend to proceed with the FOIA request and put everything that I know in front of a judge. The problem with the N.S.A. is that no judge is involved. And that is our only protection, to have an independent arbiter of these issues, and that’s a judiciary. The administration is attempting to circumvent that. And I think we need to, any time we can, put these issues in front of the judiciary and say, "Can they do this?" We don’t think they can.

AMY GOODMAN: Tom Nelson, thanks very much for being with us, an attorney in Portland, Oregon.

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