Potential Evidence Surfaces of Bush's Illegal Spying

Five months after news of the NSA's warrantless spying program broke, and after we've learned numerous details of the program's extent, a Portland, Ore., attorney may have finally obtained hard evidence of illegal wiretaps by the government.

Thomas Nelson has been practicing administrative law for most of his professional life, but after Sept. 11 he first began offering pro bono work for immigrants detained in broad FBI terrorism sweeps. He is currently leading a little-discussed case that may contain the first documented evidence of an illegal wiretap and believes that, as a result, he himself has been subjected to warrantless -- and therefore illegal -- wiretaps and physical searches, the kind of clandestine operation that Nixon referred to as "black bag jobs." And as a result of extreme carelessness by the FBI, Nelson may have his hands on the only solid evidence of these searches.

The story begins in February 2004, when the Office of Foreign Assets Control froze all funds of the Oregon branch of the Saudi Arabian charity Al-Haramain. Attorneys Asim Ghafoor and Wendell Belew defended the charity against the government's allegations that Al-Haramain Oregon was taking part in terrorist activities.

In August 2004, as a routine court procedure, the FBI provided the lawyers and defendants with documents relating to the trial. The FBI's lawyers accidentally released a document that showed the government had used logs of conversations between the lawyers and their clients, Soliman al-Buthi and the organization, to categorize Al-Haramain as a terrorist group. The catch is that the logs were obtained without a warrant.

Ghafoor and Belew initially assumed that the document was obtained through the Foreign Intelligence Surveillance Act (FISA) -- which allows for warrantless wiretaps as long as a warrant is obtained within 72 hours. But they grew suspicious when the FBI requested the return of that document. The lawyers immediately complied, but the FBI failed to contact both Al-Buthi and Seda, both now living overseas, to get their copies back.

When the New York Times broke the news of the NSA spy program last December, Belew and Ghafoor realized that the logs obtained of their attorney-client communications were probably a result of the program. That's when they contacted Thomas Nelson, an attorney representing al-Buthi in a separate case (PDF).

Another missed 'slam dunk'

On May 6, 2004, Nelson's close friend, 37-year-old civil and immigration lawyer Brandon Mayfield, was arrested as a material witness in the Madrid train bombings. The linchpin in the case against Mayfield was a low-quality fingerprint from a bag in Spain that contained detonation devices.

Though Mayfield hadn't traveled abroad in nearly a decade, and although the Spanish authorities continually asserted their doubts regarding the print match, the Department of Justice held him for two weeks while they tried to compile evidence in the case.

While Nelson helped Mayfield put together a defense, he observed firsthand the lengths to which the government went to to justify Mayfield's detainment. After the fingerprint was mistakenly tied to Mayfield, Nelson says the FBI started following him to try to find any evidence against him.

As the Portland Oregonian reports,

Initially, Portland's squad of investigators had just a few pieces of information about Mayfield. They knew his birthday and Social Security Number, and that he'd served in the military from 1985 to 1994. Analysts checked FBI databases to see if Mayfield was the subject of any investigations. He wasn't, but a deeper search circumstantially connected Mayfield to "other suspected terrorists." Court records showed that less than two years earlier, Mayfield had represented Jeffrey Leon Battle in a custody dispute. Battle was a member of the Portland Seven, a group arrested in 2002 for plotting to fight with the Taliban against U.S. soldiers.

Mayfield's legal files were seized by the government, and he had to fight to have them reviewed by a third party that could provide sufficient protections of the privileged material. An Oregon judge agreed to this and, finding nothing suspicious, ordered the government to release them.

Even as Spanish officials questioned the fingerprint match, FBI officials in Washington urged Portland prosecutors to disregard them. An e-mail from an FBI counterterrorism supervisor reads, "I spoke with the lab this morning, and they are absolutely confident that they have a match on the print. -- No doubt about it!!!!"

These kind of "slam-dunk" pronouncements have a way of backfiring: On May 19, Spanish authorities conclusively determined that the print belonged to Ouhnane Daoud, an Algerian citizen. On May 20, Mayfield was released, and the judge in the case /www.nacdl.org/__8525701C006539F8.nsf/0/9090373DE4FA9C7D85256F3300551E42?Open">refused the government's request to continue monitoring Mayfield's communications.

Nelson's experience with Mayfield's case gave him a better sense of what was happening to him when he took on Soliman al-Buthi's case at the end of 2004. Soliman, remember, while currently overseas, is one of the few who was provided with a copy of the conversation logs accidentally released by the FBI. And while the FBI did not attempt to make contact with al-Buthi, he is, according to OFAC, a "specially designated global terrorist."

If they were looking for al-Buthi, he wouldn't be hard to find. Just this past month, the Washington Post covered the work al-Buthi is doing in Saudi Arabia: "Sulaiman al-Buthi, a Riyadh-based spokesman for the International Committee for the Defense of the Final Prophet, says this religious but peaceful activism could put an end to violence and drive groups like al-Qaida out of business."

When he isn't publicly speaking against al-Qaida, he is working as an assistant director of beautification in the city of Riyadh. "Basically, he's the flower guy," Nelson told Amy Goodman in an interview, "He is responsible for the second annual Riyadh Flower Festival."

Though the FBI knew that an alleged "terrorist" possessed a document containing information about the NSA program, they did not try to find al-Buthi, or contact his lawyer, Thomas Nelson -- at least not directly.

The black bag jobs begin

Nelson officially started representing al-Buthi in September 2004; soon after, the FBI document was inadvertently released. A few months later, Nelson observed inconsistencies when he came to his office: His computer would be left on, disks still in the drive, materials shifted. Fellow lawyers from the office, working late, noticed someone on at least three occasions posing as a member of the janitorial crew, trying to get into the office.

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)."

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.'"

After these incidents, Nelson brought the al-Buthi files to his house. That's when he and his wife experienced lapses in his home alarm that the company monitors refused to explain. "They basically stonewalled us," says Nelson. "We kept calling people and they kept referring us around and saying 'We'll call you back,' but no one would ever call back."

Sensing that he may be experiencing the same kinds of searches as the FBI performed in Brandon Mayfield's case, Nelson wrote a letter [PDF] to Karin Immergut, U.S. attorney for Oregon in September 2005, requesting she "look into the matter and to inform me if representatives … have engaged in these searches." Immergut said she was not aware of any warrantless searches. After the New York Times broke the NSA story, Nelson wrote Immergut again, stating that, based upon the report, he may be the target of searches outside of the scope of FISA. Immergut responded, "I was completely unaware of any NSA surveillance program until I read about it in the media," and suggested Nelson contact the NSA directly.

Which is exactly what Nelson did. But the only response [PDF] he received reads like pure bureaucratic satire:

Rest assured that safeguards are in place to protect the civil liberties of U.S. citizens. However, because of the highly classified nature of the program, we can neither confirm nor deny the existence of records responsive to your request. The fact of the existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive Order 12598, as amended. Moreover, the third exemption to FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption.

Nelson believes the clandestine searches of his home and office have ended. But he still feels a lingering sense of discomfort: "Every time I think about the possibility that they were in my home, I get very angry … My office is one thing, my home is something else. I don't want a bunch of spooks showing up there."

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.

Nelson has been cautious since he took on Asim Ghafoor and Wendell Belew's case against the NSA. Having intimately experienced the violation of law the government is willing to take part in to keep the NSA program under wraps, Nelson elected to put the classified document in the hands of the judge. Filing it under seal, Nelson hopes to keep the document safe and the case alive.

The formal legal complaint, [PDF] filed in February, states clearly that Ghafoor and Belew's communications with their Al-Haramain charity clients were recorded without a warrant outside FISA: "Defendant National Security Agency did not obtain a court order authorizing such electronic surveillance, nor did it otherwise follow the procedures mandated by FISA."

Though the evidence is promising, the battle is far from won. The Department of Justice is fighting hard to get the classified document back under its control. Nelson and his co-counsel Steve Goldberg raised an objection -- pointing out to the judge that it might not be wise to hand evidence over to a defendant in the case, which led to this tense exchange:

U.S. District Judge Garr King: What if I say I will not deliver it (the document) to the FBI, Mr. Coppolino?

DoJ Attorney Anthony Coppolino: Well, your honor, we obviously don't want to have any kind of a confrontation with you; we want to work this out, but it has to be secured in a proper fashion. And I respect the court's, you know, authority, but on the other hand, I also would have to reiterate that it has to be secured properly.

Nelson fully expects the DoJ lawyers to pull out all the stops in order to justify the executive power behind the NSA program and for the president's right to keep the program from the public. The DoJ already filed a request explaining why the document, and hence the case, should never be made public. That explanation was unsurprisingly filed under seal, proving that even explaining why something should be classified has been deemed a classified matter. But despite the powers he's fighting against, Nelson believes that the fact that the document has seen the light of day means the fight will eventually be won.

The continued obfuscation of inquiries into the NSA program illustrates that the president's lawyers blur the distinction between protecting our national security and protecting the president's transgressions of the law from scrutiny.

There are a handful of individuals and organizations enduring intensive intimidation campaigns and spearheading legislation against the president and the NSA to put a stop to a program that is slowly undermining the basic tenets of our legal system.

Simply electing to represent someone designated a "terrorist" requires attorneys to obtain a license from OFAC or risk jail. As Nelson explained, "The purpose of OFAC is to keep an eye on 'terrorists' and, by extension, their attorneys … Frankly, I don't think this process could pass constitutional muster, but that's a fight for another day."

While the legal ins and outs of the NSA spy program may at times be complex, the essence of what Thomas Nelson is fighting for is simple: upholding the judicial tenet of "innocent until proven guilty" and the separation of powers laid out in the Constitution.

In the coming weeks, the government must file a response to Thomas Nelson's complaint. While the DoJ will inevitably try to push it from the courts, and from public attention, it is only a matter of time before the simplicity of what is at stake takes root. As Nelson explained, "It's a question of whether one man can, as commander in chief, ride roughshod over all the protections in the Constitution. If this is our response to 9/11, we've lost. If this kind of practice can occur because of 9/11, Osama won."