This diary is an attempt to explain why the Bush administration, and now Obama administration may be fighting so hard against a lawsuit filed by al-Haramain, an Islamic charity that was the subject of a raid and wiretapping and later accused of supporting al Qaeda.
I suggest below that the efforts to squash the al-Haramian litigation are because litigating this case would lead to discovery that the FISA court was manipulated by the Bush Administration, and that an untold number of warrants issued by the FISA court may have been based on illegally acquired information.
Background
I think the best place to go for background on this case is Emptywheel. I will extract significantly from Marcy Wheeler's beautiful work. This post in particular gives pertinent background on the case. In brief:
On February 18, 2004, the Treasury Department froze al-Haramain's assets and federal agents searched al-Haramain's Oregon office.
From March through September 2004, an Oregon law firm represented al-Haramain. The Treasury Department provided these attorneys with unclassified materials explaining their actions on April 23, 2004, July 23, 2004 and August 20, 2004.
The August 20, 2004 mailing included a log of electronic surveillance of conversations between directors of al-Haramain and al-Haramain's lawyers recorded between March and June 2004.
al-Haramain has argued that because no warrant has been shown to them for the March-June 2004 wiretapping, they were the victims of Illegal Warrantless Wiretapping, the program reported by Risen and Lichtblau in December, 2005. Importantly, the log shows wiretapping occurred on March 11 and March 25, 2004, dates during a window in which the President's Warrantless Wiretapping Program was not properly authorized. Thus in addition to the warrantless wiretapping itself potentially being illegal, the wiretapping conducted in this case was done during a time when the program was extra-legal. This is the basis for their lawsuit.
The Government took back the al-Haramain wiretapping logs, and has refused thus far to even show them to the judges hearing the case, citing "state secrets". Somewhat surprisingly, the Obama administration has continued the Bush fight of trying to prevent the log from being revealed and to keep the case from proceeding forward.
I ask why? What could be so terribly important to keep secret?
To me, important mysteries are:
- Why would they continue wiretapping on 3/11 and 3/25/04 when "The Program" was called into question by Jim Comey’s palace revolt? [The fight between Comey and Alberto Gonzales at Ashcroft's Hospital bed, supposedly changed the program to "make it right".]
- Why did the al-Haramain lawyers get sent the log of wiretapped calls from the Treasury Department?
The al-Haramain lawyers were initially convinced the log was sent purposefully. Below is comment from al-Haramain lawyer Wendell Belew at Emptywheel yesterday (see #139):
We first received it as part of a large batch of material. At the time we were unaware of the warrantless wiretap program so we assumed that the document was the product of lawful activity. For reasons I can’t go into, we also assumed that the transmission of the document was intentional.
Now, I'd like to put the mysteries together with this fact:
Not all FISA warrants were the same. There was a secret parallel track FISA warrant processes, designed to keep illegal wiretapping out of the FISA court, that did not work as planned.
Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
Hmmmm. Makes you wonder what the FISA judge would do when they found out a warrant was issued based upon illegal information.....
In 2004, Baker warned Kollar-Kotelly he had a problem with the tagging system. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.
My Speculation
I'd like to propose a scenario that may explain the desperate efforts to squash this case.
- My first and most important speculation is that there IS a FISA warrant that was used to conduct the wiretapping, but the Government is not willing to now reveal this warrant to the Plaintiffs or the Judge.
- The reason the Government is not willing to reveal this warrant is because the application for the warrant depended on illegal warrantless wiretapping that occurred prior to the February 18, 2004 raid of al-Haramain headquarters in Oregon.
- The illegal basis for the warrant was hidden from the FISA judges who found out later. There may be a secret revocation or order preventing the Government from using the FISA warrant.
In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said.
Corollary Analysis:
- Before the flaw was discovered, warrant-based wiretapping was conducted.
This is why they kept wiretapping on March 11 and 25, 2004 while "The Program" was flagged by Comey et al. Government had a FISA warrant, so it was no longer part of the program.
- This may also be why Treasury sent the log. Firstly, the log contained only post-raid wiretaps (post warrant?), but we surmise from good deductive reasoning that al-Haramain lawyers were likely wiretapped before the raid as part of The Warrantless Surveillance Program. It is easily conceivable that Treasury had been compartmentalized out of the knowledge that al-Haramain had previously been illegally wiretapped. So Treasury thought the log documented warranted and perfectly legal wiretapping.
- The Government delayed two weeks before getting the log back. this may be because treasury thought they were sending a log of legal wiretapping. But those in the know required wiretapping to reveal that the log had been sent. The NSA found out by eavesdropping and reported back to whomever was controlling the case.
Significance and Conclusions
I speculate that a FISA warrant that allowed the post February 18, 2004 wiretapping was either revoked in the time between the wiretaps and lawsuit, or cannot be relied upon by the government because it was produced using illegal data.
As such, discovery of the warrant problems in this case would severely damage the FISA COURT ITSELF. If the Firewall to keep illegality out of the FISA court failed in this case and illegal information was used to warrant the wiretapping outlined in the al-Haramain log, then how many of the thousands of FISA warrants written during the Bush Administration could have similar problems.
It would be interesting to see which FISA judge the wiretapping warrant was issued by....
Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.
If the speculation above is true, then I can understand why there has been and is so much effort to squash this case, perhaps even by the Obama Administration:
It is true that the efforts to cover up may hide lawlessness in the Bush Administration AND unwilling complicity by FISA judges. But also consider that criminal prosecutions of Terror Suspects could be devastated by exposing the games that were played in obtaining FISA warrants. Does Obama want to be the President that "let the Terrorists go"....
This is yet another nightmare inherited from the Bush Administration.
Update:
First of all, I want to reiterate that this is all speculation on my part.
Importantly, as I was reminded by EW, there is no evidence that the Warrantless Wiretapping Program was actually "shut down" after the Comey revolt, so it is certainly possible that the logged wiretapping was conducted as part of the Illegal Wiretapping "Program" as is the basis for the suit. Nonetheless, knowing the degree of compartmentalization in the Bush Administration, I am bothered by why the Treasury Department would get access to "Program" logs that they sent to al-Haramain.
I am also confused why the Government would log March-June calls separate from February 2004 (when they were raided) if they were part of the same program.
It is also unclear to me why on earth the Government would persist with unwarranted wiretaps that would not be admissible in any court after they had already raided the charity. So in short, I am sticking with my speculation.