Welcome back to Anti-War Radio, it's Chaos 92.7 FM in Austin, Texas.
I'm Scott and our guest today is John B. Eisenberg.
I don't know if you guys saw this article in the Viewpoint section on AntiWar.com.
I think it was yesterday, suing George W. Bush, a bizarre and troubling tale.
Eisenberg is a partner in the law firm of Eisenberg and Hancock, and he is the author of the books Using Terry, The Religious Rights Conspiracy to Take Away Our Rights and The Right vs.
The Right to Die, Lessons from the Terry Schiavo Case and How to Stop It from Happening.
Again, welcome to the show, John.
Thanks for having me.
Wow, so I really like this article because it's all about kind of Alice in Wonderland, Kafkaesque, dealing with American law.
And of course, you know, when we were little kids growing up in the Cold War in this country, we learned that Kafka, yeah, that's how they do it in Russia.
And what's good about America is we're not like that.
If you go on trial here, you get to see all the evidence against you.
If the government breaks the law in going after you, you can sue them and get accountability and so forth.
And basically what your article is about is how that isn't necessarily the case at all here.
Unfortunately, that has proved to be true in the past few years.
All right, now here's what's going on here.
You represent the Al-Haramain Islamic Foundation in a lawsuit versus the Bush administration about warrantless spying.
And if I understand correctly, what's most notable about this case is that you guys accidentally got a document proving that they were tapping your client's phone without a warrant.
And this gives you standing to sue, that none of the other people trying to sue over this actually have something that tangible to hang onto there.
Is that right?
Yes.
Let me give you a little background.
My clients are actually three people.
One, an entity, that's the Al-Haramain Islamic Foundation based in Ashland, Oregon.
And the other two clients are two of Al-Haramain's lawyers back in 2004, Wendell Ballou and Asim Ghafour.
I'm not the only lawyer involved in representing these clients.
It's actually a team of seven of us.
In 2004, Al-Haramain was placed on a list of purported terrorist organizations by the Department of the Treasury, the result of which was to block their finances and essentially put them out of business.
During the course of that investigation in 2004, the Treasury Department, specifically its Office of Foreign Assets Control, produced some documents that it was relying on to eventually declare Al-Haramain a terrorist organization.
One of those documents produced should have been all unclassified documents, but one of the documents in the stack turned out to be top secret, very top secret.
And it's our contention that this document revealed that Al-Haramain and its two lawyers, Ballou and Ghafour at the time, had in fact been wiretapped, which has led to our filing of the lawsuit in this case.
In February of 2006, we filed the lawsuit against the Bush administration, the FBI, the National Security Agency, and the Office of Foreign Assets Control for warrantless wiretapping under the program that the New York Times disclosed back in December of 2005.
So, wait a minute.
Now, they're not criminally prosecuting your clients.
They just seized their money.
Is that right?
That is essentially correct, based on some evidence that my clients were allowed to see and some evidence that my clients weren't allowed to see.
The idea on the government's part is to shut down the financing of terrorism, but they're going about it in a very peculiar way that has little to do with notions of due process.
So that's why you're suing, is you're trying to say, hey, listen, give the money back.
You didn't prove your case against our guys, and it's not fair that you came and stole all their money.
Is that it?
Well, actually, there are two lawsuits.
The lawsuit that you read about, that we can talk about in a moment, is a little bit different.
The lawsuit that I'm involved in, that we filed in February of 2006, is under the Foreign Intelligence Surveillance Act of 1978, which says that in order to conduct certain types of electronic surveillance, the government must get a warrant.
If they don't get a warrant, if they do it without a warrant, it is a felony, and it is also essentially a statutory tort, which is a fancy way of saying that the government can be held civilly liable.
They can be sued by the victims.
That's what we have done in this case.
We have literally sued the government for warrantless wiretapping under the provisions of this law called the Foreign Intelligence Surveillance Act, or FISA.
There is a separate lawsuit going on in Oregon right now, challenging the listing of Al Haramein as a terrorist organization.
I am actually not involved in that lawsuit.
That's another team of lawyers.
I see.
So, basically, one group of lawyers is suing to try to get them delisted and so forth, but your lawsuit is about, it was not okay that you tapped my client's phone without a warrant, and so I'm suing you.
That's the particular of this suit.
You got it.
That's exactly right.
Okay.
So, there are all kinds of people who, as soon as this story broke, they decided to jump on the lawsuit.
I know one of them was the great intelligence reporter, James Bamford.
He said, hey, look, I'm the great intelligence reporter, James Bamford, and I talk to people overseas on the phone all the time, and I bet you I'm one of the people whose phone is being tapped, and yet he didn't have any proof.
You guys accidentally got proof.
That's basically it.
Now, there's a huge pile of lawsuits that cropped up during the months after the New York Times broke this story.
One of the lawsuits you're referring to is the one by Bamford and some journalists.
That's ACLU versus National Security Administration.
A number of people have sued the government, claiming that their exercise of free speech has been chilled by the fear of being wiretapped when they place phone calls overseas.
Those cases differ from my case in that they don't have any hard proof that they were surveilled.
We do.
This is very important in federal lawsuits, because the federal courts require something called standing, which means you have to have been the victim of the wrong that you're suing over.
So, for us to sue for warrantless wiretapping, we have to have been wiretapped without a warrant.
We've got proof.
James Bamford and some of the other plaintiffs in those other cases, they have a different theory of standing.
They don't have proof that they were wiretapped.
Their theory is that we fear wiretapping, so our rights have been chilled.
Right, which is in itself a compelling argument from my point of view, but we'll leave that aside for the moment.
Explain to me about the conflict between this judge, where you guys apparently submitted this evidence, said, see, Judge, we do have proof, and the Justice Department, you wrote in this article at Salon, said, hey, give this back, and the judge said, yeah, what if I don't, to the prosecutors.
Tell me that story, because I barely ever get to hear about judges truly standing up to the executive branch on something.
Yeah, this judge, his name is Gar King, he's in the Federal District Court in Oregon, he was pretty remarkable.
We filed our lawsuit the end of February 2006.
Along with the lawsuit, with the opening document, which is called a complaint, we filed a copy of the document, the top-secret document that we believe shows the standing of our clients to sue.
A few weeks later, I happened to have been up in Portland, where most of the lawyers on the team were based.
I'm in Oakland, California.
Another lawyer on the team is in Los Angeles.
The two of us flew up to Portland, and we had a meeting of everybody involved in the case, all the lawyers up in Portland.
This was mid-March 2006.
In the middle of this meeting, we get a phone call from one of the Department of Justice attorneys.
He says, I'm calling to let you know that the FBI is on its way down to the courthouse in Portland to take the document from the judge.
Now, putting aside the fact that we all wondered why this guy happened to be calling us at a time when we were all sitting together in a room meeting, maybe I'm being a little paranoid there, but aside from that, we thought, well, wait a minute, the FBI can't do that.
That's part of the executive branch of government, the FBI.
They don't have the right to walk into a courthouse and take something from a judge's file.
So we immediately called the judge and said, we need a hearing on this.
And within a few days, we had what's called a telephonic hearing.
Like, nobody had to go to court.
We did it all over the phone with the judge presiding.
And during this telephonic hearing, the Department of Justice attorney said, we need this document.
It's top secret.
Disclosure threatens national security.
It's the property of the executive branch of government.
You've got to give it to the FBI.
And that's when the judge said, well, what if I don't give it to the FBI, Mr. Coppolino?
That's the DOJ's attorney's name.
He said, what if I don't give it to you?
And I thought, oh, my goodness.
This is really remarkable.
This judge seems to be daring the executive branch to cross that line and invade the judicial branch's province.
And I was just stunned.
I thought, now what?
What's Mr. Coppolino going to say to that?
And he paused, and he quite wisely, I thought, pulled back.
And he says, well, Your Honor, I don't want to have any sort of confrontation with you.
Let's work something out.
Very wise of Mr. Coppolino.
And we did work something out.
By the end of the call, we had all agreed that the document would go into a top secret repository called a Sensitive Compartmented Information Facility, or SCIF.
If you go online, you can actually discover the building specifications for a SCIF.
It's essentially immune to atomic attack.
It's a very secure facility, and they're scattered all over the country.
And this document currently resides in one of those SCIFs somewhere, I think in Washington, but I'm not allowed to know for sure.
Are you even allowed to carry around this information in your head?
Are you breaking the law?
Well, that's something I wondered about.
At a later point in this very bizarre litigation, a member of the security section of the Department of Justice told me I was not allowed to write down anything that I remembered about the document because the document is classified, and if I ever make a note, a written note about the document, my note becomes instantly what she called derivatively classified and illegal for me to possess.
And so when she told me this, I wondered, well, what does that say about the portion of my brain that remembers the document?
Does that mean it's derivatively classified and therefore illegal for me to be carrying around in my skull?
Wow.
We're getting pretty close to that point anyway.
That'll be a few years down the road, maybe.
I don't think the aluminum foil hat's going to work.
Yeah, no, I actually read somewhere that if they were using brain control waves on you, the aluminum foil would just make it worse.
It attracts the brain control waves.
Yeah, exactly.
Now, tell me about this part where the government filed an appeal against what Judge King had ruled, but they forgot to file a request suspending his ruling until the higher court heard the case, so you and your lawyer friends got away with sneaking something else through or something.
What's going on there?
Well, what eventually happened with this judge, Judge King, we ended up, after he said, I'm not giving the document to the FBI, and it ended up being held in a skiff, the government proceeded to make a motion, a request to the court, to dismiss our case based on something called the state secrets privilege, which essentially says that if a lawsuit threatens national security through disclosure of secret information, the judge can dismiss the lawsuit.
And for the government to get this done, all they have to do is tell the judge that, in their view, it threatens national security, and the judge just takes the government's word for it and dismisses the lawsuit.
The government invoked the state secrets privilege in this case and asked Judge King to throw the lawsuit out.
Eventually, and this is back in September of 2006, Judge King said, I'm not going to throw the lawsuit out, but the document is classified, and as far as I'm concerned, that means something.
I can't just treat it lightly.
Here's what I'm going to do, the judge said.
I am going to let the lawyers in this case and their clients file affidavits describing the document from memory, how they remember it in order to prove their standing, their ability to sue.
The government appealed that ruling.
So essentially, the judge is saying, I'm not throwing this case out under the state secrets privilege, but I'm not going to let the plaintiffs and their lawyers use the document either.
I'm going to let them use their memories of the document to show standing.
And up the case goes on appeal to the Ninth Circuit Court of Appeals in San Francisco.
That's when the blunder that you're talking about occurred.
Remember, now the judge has said, you can file the affidavits.
The government has appealed that ruling.
They did not ask the Ninth Circuit to stay, to suspend our filing of those affidavits, which they should have done, because the appeal itself didn't prevent us from going forward with what Judge King said we could do.
So this is in early September, and I kept waiting for the government to file their motion for suspension, for a stay in legal aids.
They didn't do it.
So I said to my teammates, hey, let's go ahead and let's do what the judge said we can do.
Let's have these affidavits, file them, and make a motion, a legal request that the judge determine our standing.
And we managed to get that on file by the end of October of 2006, before the government was able to get a stay, preventing us from doing that.
And that was just a blunder on the government's part.
So now we're on file.
Now not only is the case in the Ninth Circuit on whether or not we're allowed to use our memories of the document to prove standing, but we've actually done it.
We filed the affidavits and the motion to the lower court, the trial court, to decide our standing.
Government attorneys went berserk.
They got very angry at us because in order to prepare these affidavits and the written arguments explaining what they meant, we had to describe them in writings to the judge.
We had to prepare something that, as I mentioned earlier, becomes derivatively classified.
By writing something down that talks about the document, that writing automatically becomes classified.
I did it on my laptop.
I brought my laptop up to Oregon, up to Portland, and we all sat down.
We started writing this stuff.
And I prepared a draft of one particular thing on my laptop, and some of the lawyers up there prepared some other things on their computers.
And then we filed everything the end of October of 2006.
The government went berserk and demanded our laptops, saying, Your laptops contain derivatively classified information.
It's illegal for you to possess them.
We want them.
So that starts a whole new battle over our computers.
Right, and that's where they smashed them and shredded your banana peel and all this ridiculous...
But wait, so did you get an advantage by sneaking in that paperwork under their blunder?
That's a good question.
Did we get an advantage?
Ultimately, we kept the lawsuit moving, which was important.
So it might have been dismissed before that if you hadn't been able to submit your written-from-memory versions of the documents.
Well, I think that the bigger threat that our lawsuit was held in limbo.
The plot thickens a little bit when I explain that in the meantime, while we and some of these other plaintiffs are suing the government itself, attorneys representing telephone company customers began suing the telephone companies for turning over telephone records to the government as part of the president's oral surveillance program.
And there ultimately turned out to be about 40 of these lawsuits all over the country.
If you've heard about them, that's what Congress was referring to in giving retroactive immunity last week.
Right, throwing these suits out.
Yeah, so while our lawsuit is motoring along, there's a separate parallel track of lawsuits against the telecommunications companies motoring along.
And the concern we had was that we were going to end up taking a backseat to those cases, which in fact sort of happened.
They all got transferred to a single judge in San Francisco, all those cases and our case, Judge Vaughn Walker in San Francisco.
And our concern was that we'd sort of get lost in the shuffle.
And by continuing to litigate our case very aggressively, we didn't get lost in the shuffle.
And eventually we ended up being given pretty much equal status with one of the other telecommunications cases, the AT&T case being prosecuted by the Electronic Frontier Foundation.
And we ended up arguing our case at the same time as the AT&T case in the Ninth Circuit last August.
So, you know, when you ask what did we get by moving forward so quickly, I think the advantage we got is that we kept our case moving.
The government's tactic all along, particularly in our case, has been delay.
Delay it any way you can because if our case ever gets decided on its merits, on the ultimate issue of whether or not the President broke the law and whether he has the power to do that, I think we're going to win and I think the government lawyers think we're going to win.
So they got to delay us any way they can.
Well, hey, if they can throw out the Fourth Amendment, I guess they can throw out the Fifth and the Sixth and the Seventh and all the mandates of timely process for resolution of things like this too, right?
Well, they believe that in times of war they have the power to disregard federal constitutional law and federal statutory law and the federal constitution.
That's what they believe.
They're sincere about that.
Well, and that's the importance of this case is that due to all this maneuvering back and forth by your team of lawyers and the government on this, it went to this Judge Walker that you mentioned.
And then you got to walk me through this quickly here.
It went to an appeals court after that and the appeals court reversed Walker, but they mandated that he go back and rule whether the FISA statute overrides the state secrets privilege.
And then he went further and made some sort of ruling on the question of whether the President has inherent authority in Article II to override statutes.
Yes, quickly.
The Ninth Circuit reversed Judge King.
The Ninth Circuit said this isn't going to work.
They can't use their memories of the document to establish standing.
That's a backdoor around the state secrets privilege.
Okay, I made a mistake.
I said they reversed Walker.
That was something else.
Well, it's an understandable mistake.
I mean, it's so complicated.
All right, so they say you can't use the document.
You can't use your memories of the document.
If the state secrets privilege implies your lawsuit's gone, we're going to send it back to Judge Walker to decide whether FISA overrides the state secrets privilege.
And Judge Walker decided that on June 3rd.
He decided, yes, in fact, FISA does override the state secrets privilege.
And that would be the part of FISA that says, hey, listen, if there's a dispute about this, this is the process by which you go about resolving it.
That's mandated right in the very same law.
Exactly.
And here's the most significant thing about the judge's ruling, is he said that the president does not have the authority to disregard FISA's procedure for litigating this sort of case.
He doesn't have the authority to disregard FISA's preemption of the state secrets privilege.
Now, the reason why that's so important is because if the president doesn't have that authority, he necessarily doesn't have the authority to disregard FISA's requirement of a warrant, which means he indeed did commit a felony in conducting many, many felonies, I should say, in conducting the warrantless surveillance program.
So that's why Walker's opinion is so important, and even more so because it comes just before Congress gives the telecommunications companies retroactive immunity from liability for their violating the law.
So that means at this point, our case is pretty much the only one left in which the judges, the federal judiciary can determine the legality of the warrantless surveillance program.
And this Judge Walker has already made a determination that effectively says it's illegal.
Now, what Walker said was, unfortunately, we're not done yet.
What's the next step from here?
The next step from here is, Judge Walker said, you still can't use that document to establish your standing until you overcome some rather considerable procedural hurdles that FISA itself sets up to our case.
He said before, I will look, I, Judge Walker, will look at this document.
You're going to have to make before me some sort of preliminary showing based on unclassified evidence that your clients were surveilled.
You can't use the document yet.
That's absolutely ridiculous.
Wait a minute.
This judge has access to the SCIF and can go look at the document himself.
It's already been submitted to the record.
But now you have to prove standing beyond the absolute proof of standing that you have in his back office?
Well, essentially, I mean, I'm going to try to make it simple, although it's not going to make any sense to any non-lawyer.
Only us lawyers can figure this weird stuff out.
Judge Walker said, in order to prove that you were surveilled, first you must prove that you were surveilled.
Okay.
Now, that doesn't make any sense.
But within the context of the FISA law, what he's saying is because of the way the statute is worded, you're going to have to make some sort of preliminary showing based on non-classified evidence before I will look at the classified evidence.
Now, many would question the soundness of that reasoning.
I think that Judge Walker finds it ironic himself.
That's how he reads the statute.
At this point, I'm just going to take that as my marching order, which is we now must assemble all the non-classified evidence that we have in order to make a preliminary showing that our clients were surveilled, whereupon Judge Walker can look at the classified document in private under secure conditions.
I don't have a problem with doing that, as strange as it seems, because I think we can do it.
You have enough evidence besides that document to get your standing, you think, at this point?
Yes.
But if he rules otherwise, that's the end of that?
If he rules otherwise, we go up on appeal again to the Ninth Circuit.
And then if that happens, then the case is up on appeal in mid-January of 2009 when we get a new president.
Well, now, how long have you been a lawyer?
Twenty-nine years.
And how much like the rest of your cases is this one?
I have never had a case like this before, and I assure you I will never have a case like this again.
We've had some very strange things happen in this case.
We haven't had a chance to talk about the destruction of my laptop computer, which was bizarre in the extreme.
We haven't had a chance to talk about the oral argument in the Ninth Circuit in which the government lawyer spoke absolute and complete nonsense, and one of the judges compared what he was saying to Donald Rumsfeld.
I discussed these things in the Salon article.
I had a lot of fun writing it because it was just so bizarre.
Yeah, I really like the whole dispute about, well, Judge, that depends on what the meaning of no is.
Essentially it says they think they know what they know, but they don't really know what they know.
When they say they know that they were surveilled, what they really mean is that they don't know that they were surveilled.
And, you know, this is broadcast on C-SPAN.
You can watch it and you can see me in the background laughing.
Hey, this was on C-SPAN.
I can get the YouTube of this or something.
Let's see.
You can get the whole C-SPAN.
I don't know how you do it because I'm not technically at the depth.
You can get the whole C-SPAN broadcast of our oral argument of this case in August of last year.
There's also a YouTube posting of me talking about the case in front of the courthouse afterwards.
I'm not trying to plug myself.
You know, my hair was out of place.
You can see my balding spot, you know.
Yeah, no, it's about the information, obviously.
Yeah, but yeah, there's lots of stuff on the Internet about this.
The Internet is, in many ways, a wonderful, wonderful thing.
It is astounding how much you can discover about the government through public documents that are posted on the Internet.
All you need is two things, the time to do it and the cleverness to figure out where to look.
Right, yeah, exactly, and the ability to put the things in order of relevance and importance and make a narrative out of it.
That's what it always comes down to.
Does your story have a beginning, a middle and an end?
Otherwise, nobody cares.
Well, sometimes I wonder if anybody cares anyway, but I keep trying.
Yeah, well, you keep doing that and I'll keep interviewing you about it as long as you've got stuff to tell me.
Does that sound like a good deal?
That's a deal.
All right, everybody, that's John Eisenberg.
He's a partner in the law firm of Eisenberg and Hancock in the Bay Area there, and his article in Salon.com is called Suing George W. Bush, A Bizarre and Troubling Tale.
You can find it if you just click More Viewpoints at the front page of Antiwar.com.
Thanks very much for your time today.
Thanks for having me.
