May 2, 2008
Updated Status of Cases Involving Lawyers for Islamic Charity Who Were Apparently Subject to Government Surveillance
A New York Times article from earlier this week relating to federal government monitoring of lawyers for persons suspected of financing terrorism cited the case of lawyers for an Islamic charity as involving the only physical evidence of such monitoring. The article states that in August 2004 the government mistakenly provided lawyers for the Oregon offices of the Saudi Arabian charity Al-Haramain Islamic Foundation with a logbook of intercepted telephone calls between the lawyers in Washington, DC and clients in Saudi Arabia. When the government realized its mistake, it demanded return of the logbook, which was stamped "top secret," and warned the lawyers that they could face prosecution if they disclosed its contents. According to the article, this is believed to be the only case in which nongovernment lawyers may have seen physical evidence of the National Security Agency's warrantless wiretapping program. The article also cites two senior Justice Department officials, speaking on the condition of anonymity, who said they knew of a handful of terrorism cases since 9/11 in which the government may have monitored attorney-client conversations. Their understanding is that such conversations were not shared with front-line prosecutors, in order to avoid any violation of attorney-client privileged.
The U.S. Treasury Department designated the U.S. branch of the Al-Haramain Islamic Foundation as a terrorist-linked group in September 2004 based on evidence showing direct ties with Osama bin Laden and hidden transfers of funds to Chechnya. Numerous other branches of the Foundation have received similar designations by the U.S., the United Nations, and Saudi Arabia. A federal grand jury indicted the U.S. branch and two of its officers in 2005 on charges of conspiring to defraud the U.S. government , filing a false tax return, and related crimes arising out of the alleged transfer of a $150,000 donation from an Egyptian to Chechnya, according to a U.S. Department of Justice press release. The false tax return charge relates to falsely reporting that the donation was used to purchase a building in Missouri. It appears that the criminal case has yet to go to trial.
The U.S. branch of the Foundation is also involved in a civil proceeding arising out of the alleged intercepts. It and two of its attorneys sued the federal government in 2006 based on the allegedly unconstitutional intercepts of the calls between the Foundation's director and its U.S. lawyers, according to a Washington Post article. That lawsuit led to a U.S. Court of Appeals for the Ninth Circuit decision last fall regarding whether the state secrets privilege bars reliance by the plaintiffs on the accidentally disclosed logbook, which is essential to the plaintiffs' case. The appellate court found that the privilege did apply, but remanded the case to a federal district court to determine whether the Foreign Intelligence Surveillance Act preempted the privilege.
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