AL-HARAMAIN v. BUSH SURVEILLANCE HEARING

AL-HARAMAIN v. BUSH SURVEILLANCE HEARING

Not many people have heard of a court case that goes by the name Al-Haramain Islamic Foundation v. George W. Bush. But it's currently at the center of a far-reaching legal struggle over terrorism, surveillance, and the United States Constitution that's being played out in the courts.

On August 15, 2007, the Al-Haramain case made its way to San Francisco, where the Ninth Circuit Court of Appeals heard arguments prior to making a ruling -- a ruling that (no matter which way it goes) will inevitably be appealed to the Supreme Court, where it will be settled once and for all.

What's it all about? In one sentence, it comes down to this:

Does the United States Government have the right to conduct secret surveillance of terrorism suspects on American soil?

But the case has become rather more complicated than that. Before we get to the action of August 15, here's the gist of the case in a few short paragraphs, cutting through everyone's double-talk on both sides, and granting everyone's allegations to be true:

A Saudi charity known to finance terrorist activities opened a branch in Oregon. The US government tapped the phones of the Oregon branch and heard evidence that they were helping to finance terrorist activities as well. With this info in hand, the government designated the Oregon branch as terrorists, and froze their assets. The Oregon branch, unaware that they had been sureveilled and that the government had solid evidence against them, challenged this, and during legal proceedings, a government employee accidentally gave logs of the tapped phone conversations to the charity's lawyers.

At that point, the case changed gears: the charity hooked up with liberal lawyers to challenge the very legality of the surveillance, and by extension the legality of all secret surveillance. The decision was made to make the trial into a test case designed to weaken and embarrass the Bush administration. The government sought to circumvent this strategy by suppressing the evidence of the leaked document on grounds that its exposure would endanger national security. The governement requested back and eventually obtained all U.S. copies of the surveillance logs -- but not before an unknown number of copies made their way overseas, presumably into hostile hands. Aside from revealing the fact that the charity was surveilled, it is not clear what "operational details" the leaked document reveals. The government refuses to admit to the wiretapping or to say whether or not a warrant was obtained.

The entire case, as it is now being litigated, hinges on the question: do the plaintiffs even have the legal right to sue the government? In order to prove they have "standing," they must prove they were surveilled; and so must refer to the only evidence which proves this, the mysterious document. The government claims the document is Top Secret, and thus not admissable evidence. It is this question that was being argued before the Ninth Circuit Court on August 15.

Al-Haramain Islamic Foundation, Inc. was the Ashland, Oregon-based American branch of Al-Haramain Islamic Foundation, a huge international Islamic charity founded and headquartered in Saudi Arabia, with subsidiaries in countries around the world. After 9/11, several governments (including the U.S., the U.K., and even the United Nations) began investigating the terror funding network, and found evidence that money from Al-Haramain was used not just for charity projects but also to finance Al Qaeda and specific terrorist plots. Various foreign branches of Al-Haramain were broken up or shut down, but it was not apparently until 2004 that the U.S. branch of Al-Haramain came under intense investigation.

In early 2004, government intelligence services supposedly (or has been alleged) began electronic surveillance of phone calls connected to the Ashland Al-Haramain office. It is not known if warrants were obtained, or if the calls were domestic or international. Partly based on intelligence gathered during this surveillance, The U.S. government declared the Oregon branch of Al-Haramain a "specially designated global terrorist."

Unexpectedly, Al-Haramain fought back. They contacted lawyers and sued to have the "terrorist" designation revoked. During what is called "discovery" (a legal term in which each side in a civil case must reveal its evidence to the other side), an employee of the U.S. government accidentally included in a stack of documents given to Al-Haramain a Top Secret record of the surveillance logs.

Al-Haramain's lawyers brought in more anti-government lawyers, who recognized a golden opportunity: since this Top Secret document proved that surveillance of specific individuals had taken place, they now had "standing" (the legal right) to challenge the entire underlying lawfulness of government surveillance in principle. And so the case went into overdrive, and suddenly took on much greater significance than just an individual organization fighting for its reputation: legal activists saw a chance to use the courts to stop the Bush administration from surveilling anybody. If they could get the courts to rule that Al-Haramain had been surveilled illegally, then it would set a precedent and prevent any similar surveillance in the future, and also would render unusable any evidence gathered by surveillance in the past. In other words: a very big deal.

The government's legal team sought to forestall this by recalling the document, insisting that its Top Secret status made it unusable in court because revealing its contents would endanger national security.

From here onward, things became bizarre, a dizzying tug-of-war over surrealistic legal technicalities. Both sides were put into completely impossible positions: The government had to suppress a document which revealed Top Secret surveillance without actually admitting that it had conducted any surveillance; whereas Al-Haramain sought to revoke its designation as a terrorist organization by citing the very evidence (the information gathered during the surveillance) that suggested it was a terrorist organization.

In a word: farcical.

The government requested that the case be thrown out of court on technical grounds, since the only way Al-Haramain could even prove it had the standing to challenge the surveillance was to cite the mysterious document -- which the government claimed was not admissible as evidence. Al-Haramain countered that it could rely on people's memories and descriptions of the document. An Oregon district judge ruled in Al-Haramain's favor: the case could go forward. The government appealed the judge's decision to the Ninth District Court of Appeals (which brings us back up to August 15, 2007). Whichever way the appellate judges rule, one side or the other will then appeal it to the Supreme Court.

What does Al-Haramain want? Well, according to the original complaint filed on February 28, 2006, they are seeking acknowledgement that the government conducted warrantless phone surveillance on Al-Haramain's director Suliman al-Buthe (who subsequently fled to Saudi Arabia) and Al-Haramain's lawyers Asim Ghafoor and Wendell Belew -- surveillance which violated a 1978 federal law called FISA (the Foreign Intelligence Surveillance Act), and a treaty called the "International Covenant on Civil and Political Rights," and their constitutional First, Fourth and Sixth Amendment rights. They also are seeking suppression of any evidence gathered by the surveillance; revocation of their status as a "specially designated global terrorist"; and punitive damages totalling $1 million plus a thousand dollars a day and attorney's fees.

Al-Haramain Islamic Foundation -- based in Riyadh, Saudi Arabia, and with branches around the world -- purports to be an innocuous charity which collects funds to help Muslims in poor countries. But this façade is a cover for its real purpose: to spread extremist Wahhabi doctrine internationally, to provide funding for Al Qaeda, and to finance specific terror plots.

cont'd