Potential Evidence Surfaces of Bush/Hayden's Illegal Spying
http://www.alternet.org/story/35807/
8 May 2006 By By Onnesha Roychoudhuri, AlterNet
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 ****tland,
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 do***ented
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 do***ents relating to the trial. The FBI's lawyers
accidentally released a do***ent 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 do***ent 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 do***ent.
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 ****tland Oregonian re****ts,
Initially, ****tland'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 cir***stantially 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 ****tland 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
Wa****ngton urged ****tland 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 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 Wa****ngton 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 do***ent
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 do***ent 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 ****fted. 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 re****ted 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 re****t, 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] do***ent 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 do***ent 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 do***ent in the hands of the judge.
Filing it under seal, Nelson hopes to keep the do***ent 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 do***ent 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
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