Al-Haramain Islamic Foundation, Inc. v. Bush

• Decision Date: 07 September 2006
• Docket Number: No. 06-274-KI.,06-274-KI.
• Citation: 451 F.Supp.2d 1215
• Parties: AL-HARAMAIN ISLAMIC FOUNDTION, INC., an Oregon Nonprofit Corporation, Wendell Belew, a U.S. Citizen and Attorney at Law, Asim Ghafoor, a U.S. Citizen and Attorney at Law, Plaintiffs, v. George W. BUSH, President of the United States, National Security Agency, Keith B. Alexander, its Director, Office of Foreign Assets Control, an, office of the United States Treasury, Robert W. Werner, its Director, Federal Bureau of Investigation, Robert `S. Mueller, III, its Director, Defendants, and Oregon Publishing Company, Intervenor.
• Court: U.S. District Court — District of Oregon

451 F.Supp.2d 1215

AL-HARAMAIN ISLAMIC FOUNDTION, INC., an Oregon Nonprofit Corporation, Wendell Belew, a U.S. Citizen and Attorney at Law, Asim Ghafoor, a U.S. Citizen and Attorney at Law, Plaintiffs, v. George W. BUSH, President of the United States, National Security Agency, Keith B. Alexander, its Director, Office of Foreign Assets Control, an, office of the United States Treasury, Robert W. Werner, its Director, Federal Bureau of Investigation, Robert `S. Mueller, III, its Director, Defendants, and Oregon Publishing Company, Intervenor.

No. 06-274-KI.

United States District Court, D. Oregon.

September 7, 2006.

COPYRIGHT MATERIAL OMITTED

Jon B. Eisenberg, Attorney at Law, Oakland, CA, Lisa R. Jaskol, Attorney at Law, Encino, CA, Thomas H. Nelson, Zaha S. Hassan, Thomas H. Nelson & Associates, Jessica Ashlee Albies, Law Office of J. Ashlee Albies, Steven Goldberg, Portland, OR, for Plaintiffs.

Andrea Marie Gacki, Andrew H. Tannenbaum, Anthony J. Coppolino, U.S. Department of Justice, Washington, D.C., for Defendants.

Charles F. Hinkle, Emilie K. Edling, Stoel Rives, LLP, Portland, OR, for Intervenor.

OPINION AND ORDER

KING, Judge.

Plaintiffs Al-Haramain Islamic Foundation, Inc., Wendell Belew, and Asim Ghafoor filed suit against George W. Bush, the National Security Agency ("NSA"), the Office of Foreign Assets Control ("OFAC"), the Federal Bureau of Investigation ("FBI"), and the respective agency directors (collectively, "the government") for violations of the Foreign Intelligence Surveillance Act ("FISA"), the Separation of Powers clause, the Fourth, First and Sixth Amendments to the United States Constitution, and the International Convention for the Suppression of the Financing of Terrorism. The government has filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (# 58) and a Motion to Prevent Plaintiffs' Access to the Sealed Classified Document (# 39). Plaintiffs have filed a Motion for Order Compelling Discovery (# 35). Oregonian Publishing Company has filed a Motion to Intervene and to Unseal Records (# 7).

For the reasons described herein, the government's Motion to Dismiss is denied, and its Motion for Summary Judgment is denied with leave to renew. The government's Motion to Prevent Plaintiffs' Access to the Sealed Classified Document is granted. Plaintiffs' Motion for Order Compelling Discovery is denied with leave to renew. Oregonian Publishing Company's Motion to Intervene was previously granted on April 25, 2006, and its Motion to Unseal Records is denied.

BACKGROUND

I. Factual Background

On December 17, 2005, in a radio address, and in response to an article the day before in The New York Times, President George W. Bush announced that he had authorized "the interception of international communications of people with known links to al Qaeda and related terrorist organizations" ("Surveillance Program") after the September 11, 2001 attacks.¹ President's Radio Address (Dec. 17, 2005), available at http://www.whitehouse.gov// news/releases/2005/12/20051217.html. Attorney General Alberto Gonzalez subsequently confirmed that the Surveillance Program intercepts communications where one party to the communication is outside the United States and the government has a reasonable basis to believe that at least one party to the communication is affiliated with, or working in support of, al Qaeda.

Plaintiffs allege in their Complaint that in February 2004 OFAC froze Al-Haramain's assets while investigating whether Al-Haramain was engaged in terrorist activities. At that time, Al-Haramain was affiliated with and supported by Al-Haramain Islamic Foundation, a charity in Saudi Arabia. Plaintiffs allege that Al-Haramain's assets were frozen as a result of warrantless electronic surveillance between a director or directors of Al-Haramain and its attorneys, Belew and Ghafoor. Plaintiffs also allege that in March and April 2004 the NSA engaged in electronic surveillance of communications between Al-Haramain's director or directors and Belew and Ghafoor, without obtaining a court order or otherwise following the procedures required under FISA. They further allege that in May 2004, the NSA turned over logs of these conversations to OFAC, which subsequently identified Al-Haramain as a "specially designated global terrorist" in September 2004.

The government offers some additional information about Al-Haramain. It explains that the identification of Al-Haramain as a specially designated global terrorist was due to its having provided support to al Qaeda, Osama bin Laden, and other specially designated global terrorists. In addition, the United Nations Security Council has identified Al-Haramain as an entity belonging to or associated with al Qaeda. The government also explains that Soliman Al-Buthi,² a director of Al-Haramain and a citizen of Saudi Arabia, has been identified as a specially designated global terrorist.

Plaintiffs seek a declaration that the surveillance of them was unlawful, seek disclosure of the communications, information, and records obtained as a result of the surveillance, along with the subsequent destruction of such information and records, seek to enjoin warrantless surveillance of plaintiffs, seek $1,000 or $100 per day for each violation of FISA, and seek punitive damages of $1,000,000, costs and attorney fees.

Along with their Complaint, plaintiffs filed a document under seal with the Court (the "Sealed Document"). OFAC inadvertently disclosed this document to counsel for Al-Haramain in late August 2004 as part of a production of unclassified documents relating to Al-Haramain's potential status as a specially designated global terrorist.

Lynne Bernabei, an attorney for Al-Haramain and for two of its directors, Al-Buthi and Pirouz Sedaghaty (a k a Pete Seda), testified in a declaration about the circumstances surrounding her dissemination of the Sealed Document. Upon receiving the packet of materials from OFAC, she copied and disseminated the materials, including the pertinent document which was labeled "TOP SECRET," to Al-Haramain's directors and Bernabei's co-counsel. In August or September, a reporter from the Washington Post reviewed these documents for an article he was researching. On October 7, 2004, Bernabei learned from the FBI that included among the produced documents was a sensitive document that OFAC claimed had been inadvertently released. At the request of the FBI, Bernabei and her co-counsel returned their copies of the sensitive document to the FBI. The FBI did not pursue Al-Haramain's directors, whom the government describes as "likely recipients" of the document, to ask them to return their copies.

The government asserts that the Sealed Document carries a classification of "TOP SECRET" and that it contains "sensitive compartmented information" or "SCI." The Sealed Document is now in the Secure Compartmentalized Information Facility at the FBI office in Portland ("SCIF").

II. Procedural Background

On March 17, 2006, the Oregonian Publishing Company filed a Motion to Intervene and to Unseal Records. On May 22, 2006, plaintiffs filed a Motion for Order Compelling Discovery, seeking to compel the government to respond to interrogatories requesting information about electronic surveillance of the plaintiffs and information regarding the reasons for classifying the Sealed Document. On May 26, 2006, the government filed a Motion to Prevent Plaintiffs' Access to the Sealed Classified Document.

On June 21, 2006, the government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. In this motion, the government asserts the military and state secrets privilege ("state secrets privilege"), arguing that the case should be dismissed or, in the alternative, that summary judgment should be granted in favor of the government based on the privilege. In support of its assertion of the privilege, the government provided unclassified declarations of John D. Negroponte, Director of National Intelligence, and Lieutenant General Keith B. Alexander, Director, National Security Agency. In addition, the government lodged classified materials for in camera, ex parte review. Specifically, the government submitted classified declarations of Negroponte and Alexander, as well as classified versions of its memorandum and reply in support of its motion to dismiss, and its opposition to plaintiffs' motion to compel. Plaintiffs objected to the lodging of the materials for in camera, ex parte review.

In order to better prepare myself for oral argument, and to assess the government's assertion of the state secrets privilege, I ruled on August 18, 2006 that I would review the government's in camera, ex parte materials filed with the Court on June 21, 2006 and July 25, 2006. The Ninth Circuit has noted that it is "unexeceptionable" for the government to elaborate on public filings with in camera submissions and for judges to review such filings to determine the validity of the claim of privilege. Kasza v. Browner, 133 F.3d 1159, 1169 (9th Cir.1998) (collecting cases); see also United States v. Ott, 827 F.2d 473, 476-77 (9th Cir.1987) (ex parte, in camera review of FISA material does not deprive a defendant of due process). The D.C. Circuit has noted that it is also "well settled" that evaluation of the legitimacy of a state secrets privilege claim should not involve the participation of plaintiff's counsel in the in camera examination of putatively privileged material. Ellsberg v. Mitchell 709 F.2d 51, 61 (D.C.Cir.1983) (describing district court and court of appeals inspection of in camera submissions). However, since the government had not yet asserted the state secrets privilege at the time of filing the in camera, ex parte declarations on April 14, 2006 and May 12, 2006, supporting its opposition to the Oregonian's motion, I declined to review those submissions.

DISCUSSION

I. The State Secrets Privilege

The government's assertion of the state...