The following op-ed was written by GAP Homeland Security Director Jesselyn Radack
One of the most viable challenges to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity, the Al-Haramain Islamic Foundation, that alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations. That's because, as the Treasury Department was preparing to freeze the organization's assets, it inadvertently sent Al-Haramain attorneys an NSA log, classified as "Top Secret," of intercepted calls.
The case involves the controversial and much-discussed "state secrets privilege" – the topic of an April 28 New Yorker piece by Patrick Radden Keefe.However, little attention has been paid to the serious legal ethics issues raised by the Al-Haramain case – which I will consider in this column.
The Rulings in the Al-Haramain Case on the State Secrets Issue
The Justice Department initially moved to dismiss the Al-Haramain case on the ground that it was foreclosed by the state secrets privilege. The district court denied the motion, but held that the NSA call log was protected by the privilege, even despite its inadvertent disclosure. However, the district court allowed Al-Haramain to file in camera affidavits in which the attorneys who had received copies of the document attested to its contents.(An "in camera" submission is for the court's eyes alone, not the public's.)
The U.S. Court of Appeals for the Ninth Circuit granted interlocutory review (that is, review in the midst of the case) at the government's request, as is required in the case of an order "authorizing the disclosure of classified information." On appeal, the Ninth Circuit agreed with the district court's rulings, with the exception of its ruling allowing Al-Haramain to reconstruct the essence of the document through memory.
Relying on the Supreme Court's 1953 decision in United States v. Reynolds, the Ninth Circuit reasoned that allowing in camera review of affidavits attesting to individuals' memories of the document effectively sanctioned the revelation of "material touching" upon privileged information. The Ninth Circuit reasoned that "if the [NSA log] is privileged because it contains very sensitive information regarding national security, permitting the same information to be revealed through reconstructed memories circumvents the document's absolute privilege." However, this was arguably a misreading of Reynolds, which never refers to the state secrets privilege as "absolute."
Moreover, the Ninth Circuit was concerned with the fallibility of memory. It reasoned that if the Al-Haramain attorneys' memories were accurate, releasing their accounts would be tantamount to releasing the inadvertently-produced call log itself. Alternatively, if their memories were inaccurate, the court would not be well-served and the disclosure might be even more problematic from a security standpoint.
As the case now stands, the district court is poised to rule on whether the Foreign Intelligence Surveillance Act (FISA) preempts the state secrets privilege – an argument central to its ability to proceed with this lawsuit. If it does not, Al-Haramain cannot establish that it has standing and its claims must be dismissed. Yet whether Al-Haramain wins or loses, the glaring legal ethics violations committed by the government along the way – which I will now describe – must be addressed.
The Shadowy Department of Justice Litigation Security Group
A good place to begin is with the Litigation Security Group (LSG). With the NSA call log still classified, Al-Haramain's appellate lawyers were obliged to write their brief under supervision of the Department of Justice (DOJ)'s LSG. DOJ does not mention the group on its website. When I inquired, DOJ finally directed me to the website of the Federal Judicial Center, the education and research agency for the federal courts, which contained a link to a "pocket guide" for judges on the state secrets privilege, the Classified Information Procedures Act, and court security officers, which explains that:
"[t]he Department of Justice employs security specialists whose job it is to assist the courts in protecting the secrecy of classified information. There are ten security specialists employed by the Department's Security and Emergency Planning Staff (SEPS). They constitute the Litigation Security Group. The security specialists are not lawyers, and they are organizationally quite separate from the government's representatives in court. Their obligation is to help the court protect classified information, not to assist the government's representatives in court (emphases added).
This description makes the process seem neutral, professional, and reasonable. But the process used in the Al-Haramain case fit none of those descriptions.
How the Litigation Security Group Violated Ethics in the Al-Haramain Case
In fact, in the Al-Haramain case, a security officer enforced a series of restrictions upon the charity's attorneys as they wrote their Ninth Circuit brief: The attorneys had to write the brief at DOJ offices on a government computer; they could bring no notes or law books with them; and while the government and the judge could keep copies of the completed brief, Al-Haramain could not.
Moreover, one of the government lawyers working on the case singled out one of the three Al-Haramain appellate attorneys by name and barred him from working on the brief. DOJ claims that the attorney in question raised "security concerns" because earlier he had not allowed government technicians to purge his computer of classified information, but it's hard to blame him when one learns that the way this was done, in the same case, was that the security officer and a computer technician placed the hard drive on the floor and pounding it with a table leg! (In another display of professionalism, the preliminary drafts of the brief were shredded along with the peel of a banana one of the attorneys had eaten for lunch.)
This conduct is not only shocking, but it violates important state-bar ethics rules. Under federal law, a government lawyer must comply with the bar rules of the state in which she is are licensed and any state in which he litigates. The majority of states have adopted some version of the ABA Model Rules of Professional Conduct ("Model Rules"), so I will draw upon the Model Rules in assessing the conduct of the government attorneys here.
To begin, it is important to note that the attorneys were responsible for the conduct of the non-attorneys, such as the computer technician and security officer. Model Rule 5.3 (which virtually every state has adopted verbatim) provides, in relevant part:
"With respect to a nonlawyer employed or retained by or associated with a lawyer:
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer."
Meanwhile, Rule 8.4(a) states that "[i]t is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct . . . through the acts of another."
But which Model Rules were specifically violated? Let's begin with Rule 1.7, which governs conflicts of interest. This most certainly includes having a government lawyer micro-manage the brief-writing of his opponent by excluding a particular attorney from the work – an act that undermines the fundamental precepts of the adversarial process.
If the LSG is to be truly neutral and independent, there must be a complete firewall between it and the government litigation team. Such a firewall would not be difficult to impose, and there are clear precedents. Indeed, the Justice Department uses screening mechanisms all the time; for example, to isolate an attorney working on a civil enforcement proceeding from a related criminal prosecution. This entails the isolation of the affected lawyer from any participation in a conflicting matter through the timely imposition of procedures that are reasonably adequate under the circumstances to protect information that the isolated lawyer (or nonlawyer assistant, such as the security officer) is obligated to protect. Model Rule 1.0(k) details the elements of an effective screen.
Such procedures would never allow Justice Department lawyers involved in a case to babysit brief-writing by a party opponent. Nor would they allow them to destroy their opponents' drafts, as occurred here. Model Rule 3.4, which governs "Fairness to Opposing Party and Counsel," states that a lawyer shall not "unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act."
Drafts can be easily safeguarded by having a judge place them under seal, not by having a computer tech go medieval on a hard drive.
Other Possible Solutions: Passing the State Secrets Protection Act, and Complying with the Foreign Intelligence Surveillance Act
Meanwhile, there are also other solutions that would help avoid government ethics violations such as we have seen in the Al-Haramain case.
In the criminal context, the Classified Information Procedures Act (CIPA), PL 96-456, has been used successfully in national security cases for years to protect sensitive information in trials. In late January, Senators Edward M. Kennedy and Arlen Specter introduced a bill, the State Secrets Protection Act, modeled on CIPA that would let a judge appoint a special master with a security clearance and intelligence expertise to review in private the information that the government claims is too sensitive for disclosure.
Importantly, Kennedy's bill would also preserve the adversarial process and basic fairness by giving the plaintiff's lawyer the opportunity to review the evidence if the lawyer had a security clearance.If the evidence itself was "too sensitive," as seems to be the government's position and the appeals court's conclusion in the Al-Haramain case, the judge could order the government to provide an unclassified summary.If providing such a summary was not possible, the judge might exclude the evidence but would not be forced to dismiss the entire lawsuit.
Of course, cases like this one have arisen precisely because the government failed to obtain a warrant under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801 et seq., in the first place. However, FISA remains relevant here:
Under FISA's section 1806(f), if an "aggrieved person" requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, then a district court may review in camera and ex parte (that is without access by the other side) the materials "as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials "where such disclosure is necessary to make an accurate determination of the legality of the surveillance," and the statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance "was lawfully authorized and conducted."
In sum, there are well-established and fairer procedures that could have been used in the Al-Haramain case. Yet the U.S government decided not to use them. The fact that this is a state-secrets case is no excuse. The state secrets privilege is supposed to protect national security, not serve as an end-run around basic legal ethics that undermines the integrity of the legal process.