Steven Goldberg, Portland-based attorney representing the Islamic charity Al-Haramain.
A federal judge ruled last week that the National Security Agency’s warrantless surveillance program was illegal and in violation of the Foreign Intelligence Surveillance Act. Both the Bush and Obama administrations had tried to dismiss the suit, claiming a trial could result in the release of state secrets. The ruling marks the strongest legal repudiation to date of the Bush administration’s spy program since it was first publicly revealed in 2005. We speak with attorney Steven Goldberg, who represents the Islamic charity Al-Haramain in the case. [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
We turn now to a major rebuke of the Bush administration spy program and what it could mean for state secrecy under the Obama White House.
Last week a federal judge ruled the National Security Agency’s warrantless surveillance program was illegal. Chief Judge Vaughn Walker of the federal district court in San Francisco ruled the government illegally intercepted the phone calls of an Oregon-based Islamic charity called Al-Haramain in 2004. Both the Bush and Obama administrations had tried to dismiss the suit, claiming a trial could result in the release of state secrets. But Judge Walker rejected the state secrets argument, saying it presented, quote, "obvious potential for governmental abuse and overreaching." The ruling marks the strongest legal repudiation to date of the Bush administration spy program since it was first publicly revealed in 2005.
Yesterday I spoke to one of the attorneys representing the Islamic charity. I talked to the Portland-based attorney Steven Goldberg. He talked to me from Oregon to explain what happened to Al-Haramain in 2004.
What happened to the charity was that after the National Security Agency warrantless wiretap program was instituted, conversations between directors of the charity, who were outside of this country, and lawyers representing the charity, primarily in the Washington, DC area, were intercepted. They had no idea that this was going on — all of this was secret — until a document was disclosed inadvertently in 2004. That document, we believe, was evidence of the fact that these conversations had been wiretapped or surveyed by the government.
When the document was first released, nobody really understood the meaning of the document. But then, in December 2005, when the New York Times broke the story regarding the NSA warrantless surveillance program, suddenly people understood the meaning of the document, and ultimately that document got to attorneys, and ultimately that was used as the basis for filing this lawsuit.
Can you tell us exactly what this document said?
I can’t. The document is a top-secret classified document. It’s also what’s called an SCI document, a “sensitive compartmented information” document, which is a separate intelligence classification. And the doc, as such, we’re not allowed to — even though the document — we’ve seen the document, we’re not allowed in any way to discuss what the document says. To do so would be a violation of federal law.
Judge Walker’s opinion catalogued other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs. Can you talk about the other cases that he cited?
Right. Well, the conundrum that we had actually in this case was that we had this document, we believed that the document was evidence of the wiretapping that had been done of our clients, but we weren’t able to use the document, and the government essentially spent — has spent all the years of this litigation keeping us from using the document. Initially, they took the position that we couldn’t use the document based upon the state secrets privilege, and that determination was upheld by the Ninth Circuit Court of Appeals. But the case was remanded back to Judge Walker to decide whether the Foreign Intelligence Surveillance Act, whether FISA, pre-empted or overcame the state secrets privilege. Judge Walker decided that indeed it did and that we should be able to use the document in this case.
But he then created all sorts of mechanisms for us to be able to do that. First of all, he said we had to prove that we had enough evidence to show that our clients were surveyed using non-classified evidence, which we were able to do. He then required or ordered the government to process security applications for the attorneys to allow us to basically have access to the government’s classified filings in the context of this case. But at that stage, the government said they were unwilling to allow us — even though we got these security clearances, were still unwilling to allow us to use the document in the case.
And at that point, Judge Walker said, “Well, the plaintiffs have done enough to present the evidence in the case. Government, it’s now up to you to prove that in fact there was a warrant or that in fact they were not surveyed.” And when the government failed to do that, failed to engage in that discussion in the case, Judge Walker concluded that we had presented enough of a case and that the government’s actions were illegal under FISA.
Your co-counsel, Jon Eisenberg, said the Obama administration is as bad or worse than the Bush administration when it comes to these issues of invoking state secrets or justifying this wiretapping. What are your thoughts on this, Steven Goldberg?
When the Obama administration came into being, we assumed that there was — and hoped that there would be a change in the government’s policy in terms of fighting or contesting this litigation, particularly on the secrecy grounds. Yet we found there was no change in the Obama administration’s position. They were fighting as vigorously as the Bush administration to keep this case from seeing the light of day and essentially made the same arguments to Judge Walker: if you decide that there was a warrant in this case, that will be a threat to national security; if you decide that there wasn’t a warrant in this case, that would be a threat to national security; so, Judge, you cannot deal with the merits of this case. And Judge Walker ultimately rejected the government’s arguments. But we were, of course, disappointed that there really was no change in position between the Bush and Obama administrations.
Also, on the issue of allowing the counsel to see important federal documents related to the case, in Jon Eisenberg’s case, even though he had the top-secret security clearance that was necessary, this was the Obama administration holding back these documents, Steven Goldberg.
Yes. Yes, what happened was the judge, again, ordered that several of the lawyers in the case be allowed to apply for these clearances. Eisenberg and I were given these security clearances. We proposed, per Judge Walker’s suggestion, a protective order which would protect the use of the document in the litigation so that there would be nothing disclosed that could be a threat to national security. And despite all of these efforts that the judge made to allow the document to be used, the government still took the position that, no, you can’t use the document, you cannot use classified evidence at all, and simply maintained that position, as the Bush administration had, throughout our case.
So what are you calling for now? And what does this mean for surveillance today?
Well, in terms of the case itself, this is really the only case, outside of the Guantánamo context, which has successfully challenged what we see as the excesses of the Bush administration. None of the other cases have been allowed to proceed, primarily because people couldn’t prove that, in this case, that they had been wiretapped. We were able to prove that. And as a result, it resulted in this decision, which we think is momentous because of that, because it is the only case so far which has challenged and declared these excesses to be illegal.
The next phase of this case is that the court will order damages against the government, and then it’s up to the government to decide whether they want to appeal the case. In terms of the secrecy issues, the case again deals with the question of FISA actions overcoming the state secrets privilege, but it doesn’t deal with the underlying state secrets privilege. That privilege is still alive and well in the courts. And hopefully there will be other cases which will continue to challenge the government’s efforts to stop these kinds of cases going forward based upon the state secrets privilege.
You say it strikes down what the Bush administration has done. But being that the Obama administration so vigorously defended what the Bush administration did, what will prevent the Obama administration from doing the very same thing?
Well, in terms of the secrecy issues preventing these cases from going forward, I don’t know if there is anything that’s going to prevent the Obama administration from continuing to take that position, unless you have courageous judges like Judge Walker who are willing to stand up to them and basically say, if you’re not going to engage and if plaintiffs can at least make a prima facie case that they were subject to illegal actions, we’re going to move forward. That’s a courageous position, again, for a judge to take, and it’s not clear whether other judges will be willing to take that position.
In terms of the legality at least of the NSA warrantless wiretap program, we now have a decision which at least says that surveillance under that program without warrants was illegal. And if that happens again and if it can be discovered that that happens again, certainly whichever officials perform those actions would again be subject to damages, but could be subject to criminal penalties, I think, which FISA also provides, now that we have at least one case which says that these actions are indeed illegal and a violation of FISA. That, I think, is the real importance of this case.
Portland-based attorney Steven Goldberg, speaking to us from Oregon, explaining what happened to the charity Al-Haramain in 2004.
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