Judge refuses to give FBI custody of classified document
A federal judge in Oregon has refused to hand over for safekeeping to the FBI a classified document that may show that the NSA conducted warrantless electronic surveillance on an Ashland, Ore., charity that the government alleges had ties to Osama bin Laden. U.S. District Judge Garr King sided with charity attorney Steven Goldberg, who argued that the FBI is a defendant in the case and therefore not a neutral party that can be entrusted with the document. The judge instead has temporarily placed the document with federal prosecutors in Seattle until he can make a decision as to how the material should be handled.
Thomas Nelson, who also represents the charity, al-Haramain Islamic Foundation Inc., gave the document to the judge in February as part of a lawsuit he has filed against the Bush administration alleging that the NSA conducted illegal eavesdropping on conversations between charity codirector Suliman al-Buthe and his American attorneys, Wendell Belew and Asim Ghafoor. The intelligence was later used to target the charity, Nelson's complaint alleges.
According to the Washington Post and other sources, Treasury Department officials—who were investigating the foundation for terrorist ties—inadvertently gave a copy of the classified document, marked "top secret" and dated May 24, 2004, to an al-Haramain attorney, as part of a routine disclosure of documents the government was citing to designate the charity as a terrorist organization. In May 2004, the attorney gave the document to Belew and Ghafoor, who also represented the charity. Belew in turn gave a copy of the document to a Post reporter. In November 2004, FBI agents took the document back from Belew and the Post reporter saying it contained highly sensitive national security information, according to the Post.
Nelson won't say how he obtained a copy of the document except to say he did so legally. He asked King to review it under seal, "out of an overabundance of caution," which didn't prove misplaced. Last week, during a conference call with al-Haramain attorneys and Justice Department lawyers from Oregon and Washington, D.C., King noted that a government security specialist had examined the document's classification level and concluded that it had to be placed in a secure compartmented information facility (SCIF). Since his court didn't have such a facility, King offered to send it either to the FBI's SCIF in Portland or to the U.S. attorney's SCIF in Seattle.
Al-Haramain attorney Goldberg objected to the document "being left with the FBI," noting that the FBI "is a defendant in this lawsuit." And, Goldberg added, "we're dealing with a document that may involve criminal behavior by that defendant."
Justice Department lawyer Anthony Coppolino tried to convince the judge that handing the document to the FBI for safekeeping would in no way compromise it, but the judge was unmoved.
"What if I say I will not deliver it to the FBI, Mr. Coppolino?" asked King.
"Well, your honor," Coppolino responded, "we obviously don't want to have any kind of confrontation with you; we want to work this out, but it has to be secured in a proper fashion." After some more to-ing and fro-ing, King ruled that the document be placed in the U.S. attorney's SCIF in Seattle for a couple of weeks until he can decide how to deal with it.
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