"Part of our surveillance occurred when the Attorney General advised the president that the program was illegal," says plaintiff attorney Jon Eisenberg. "That deprives them of the defense they didn't know it was illegal."
According to Congressional testimony taken earlier this year, on March 10th, 2004, top Justice Department lawyers and White House officials held a tense showdown over the NSA spying program at the bedside of then-attorney general John Ashcroft in an intensive care unit. Ashcroft's resolve left the president's program without the Justice Department's stamp of approval for about two weeks, as the White House scrambled to tweak the program to meet Ashcroft's demands.
Attorneys in the al-Haramain case say the plaintiffs were spied on in March and April of 2004, during a period that encompassed that two week interregnum.
Belew knew things were weird when the FBI showed up at his house in 2004 and demanded he give back the document and forget that he ever saw it. When he realized it was part of the NSA spying scandal, he and Ghafoor decided to sue.
Now his case is winding its way through the courts and the document at question is being held under guard by the court in San Francisco and will be used as evidence by U.S. District Court Chief Judge Vaughn Walker who is in charge of the case. Portland Judge Garr King had refused to hand the document over to the FBI when they asked for it so the court still has it (otherwise it would probably have disappeared like Karl Rove's email).
Wired provided a comprehensive report last March on this bizarre case which could blow apart Bush's illegal spying if only the courts don't decide that the executive is all powerful and above the law. (via)
Here's a story that describes what a lawyer for Belew and Ghafoor is experiencing after taking on their case. As a friend of Brandon Mayfield, the Portland attorney that had been falsely accused of being involved in the Madrid train bombings, Thomas Nelson knew he was stepping into a dangerous case. This is yet another case that reads like a John Grisham novel. From AlterNet:
The Oregonian reported that attorney Jonathan Norling "was sleeping on a couch at their practice early one morning last May, when a man dressed as a custodian tried to enter Nelson's office. Norling startled the man twice one night in July, when he caught the man trying to enter the locked office." The man in question had what appeared to be a valid badge for the building. But Norling notes, "This person wasn't a cleaning crew. I know the cleaning crew. I've worked here seven years, and I've worked a lot of nights, and I never experienced anything like that until Tom was working (on this case)."- Advertisement -
Though Nelson approached the security people at the building, they wouldn't talk to him. "They were very blunt," he told AlterNet in a phone interview. He then took his concerns to the building manager. "It was all very disconcerting and inconclusive," says Nelson. "There was no direct denial. At the end, I said, 'You probably couldn't tell me if something was going on anyway.' He said, 'That's probably right.'"
Eventually, the strange happenings followed him to his home. As this AlterNet piece says, the case is exceedingly strange:
The fact that most frustrates Nelson is that no one ever tried to contact him or al-Buthi personally; rather, they resorted to what Nelson thinks must be illegal searches. "In retrospect," Nelson says, "I think they were trying to get the [leaked FBI] document back. If the searches were pursuant to FISA, it would be interesting to find out what they told the judge to get a warrant -- 'We've been conducting this illegal wiretapping program, we've embarrassed ourselves, there's this document out there that Nelson has, will you give us a warrant to get it back?'"
This is the circular logic that lies at the root of the debacle: In order to hide evidence of an illegal search program, the government is taking part in illegal searches.
This really is the last case left that threatens Bush's illegal wiretapping because none of the objections from earlier appeals decided in Bush's favor touch it. Here is clear and positive proof that the administration broke the law. Will the courts allow them to get away with it? We'll know soon. August 15th, the 9th Circuit Court will hear the appeal of whether Judge Garr's decision to allow this case to proceed was decided correctly.
The Bush administration truly do not believe they must follow the law. Just think what would happen next if they get away with this crime.
(x-posted at Pacific Views)