Beyond Kafka

It’s not like they did it on purpose. It was just a mistake and then a bunch of soreheads go and make a big deal out of it. The soreheads are Al-Haramain Islamic Foundation, Inc., Wendell Belew and Asim Ghafoor who have taken it upon themselves to sue George W. Bush just because of a minor slip-up. The whole idea makes every upstanding citizen indignant. And the lawyer who wrote the brief explaining his position even had the temerity to suggest that the position taken by Mr. Bush’s justice department was reminiscent of Franz Kafka. How outrageous. But you decide for yourself. Here’s what happened.

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA placed limits on the types of warrantless electronic surveillance that could be conducted by the government. Congress passed the law because it had learned of instances of abusive warrantless wiretapping by the National Security Agency (NSA) and the Central Intelligence Agency (CIA). Spying on its own citizens is something totalitarian governments do but democracies such as ours detest. To protect us from spying, FISA requires the government to obtain a warrant from a judge of the FISA court if it wants to eavesdrop on citizens, resident aliens or an association comprising such persons. (There are three exceptions to the requirement not relevant here.)

After 9/11 Mr. Bush decided he needed to do something to protect us from bad things since he’d forgotten to do that before 9/11. By means of an Executive Order he created the Terrorist Surveillance Program (TSP). TSP permits the NSA to ignore FISA if it believes one of the folks being eavesdropped on is affiliated with or working in support of al Qaeda. The authorization for the TSP requires Mr. Bush to recertify it every 45 days. In addition, and herein lies much comfort for the ordinary citizen, “warrantless” surveillance can not take place on a whim. An employee of NSA has to think it is required and his or her shift supervisor has to agree. That is a level of protection you would not find in a true totalitarian state where the shift supervisor’s approval would not be required.

On March 9, 2004, two days before a 45-day recertification was due. John Ashcroft told Dick Cheney and others that the Department of Justice would not recertify the TSP because it was unlawful. Not deterred by such niceties when protecting us from terrorists was at stake, Mr. Bush permitted the unlawful surveillance to continue.

During the period Mr. Bush was breaking the law and ignoring his own executive order, Al-Haramain Islamic Foundation, Inc. learned of the eavesdropping. It learned of it because the Office of Foreign Assets Control (OFAC) had temporarily frozen its assets believing it to be a “Specially Designated Global Terrorist” organization. August 20, 2004, OFAC gave Al-Haramain’s counsel a group of unclassified materials. Included among them was a document that had an extremely high top secret classification that proved that in March and April of 2004 the plaintiffs had been subject to warrantless surveillance in violation of FISA.

FISA provides that when a violation occurs, the victim of the violation may sue the person committing the violation and obtain actual damages of the greater of $1000 or $100 per day for each day the violation occurs plus punitive damages, reasonable attorney’s fees and costs. When Al-Haramain learned that Mr. Bush had been violating its rights, it did exactly what you would expect a “Specially Designated Global Terrorist” organization would do. It sued.

An administration that has no respect for the law or the Constitution did exactly what you would expect it to do. It said that for anyone to disclose that it had broken the law helped terrorists. It said the very existence of TSP was a secret even though its existence had been described in newspaper accounts. It said the plaintiffs can’t prove their rights have been violated because to prove their rights had been violated they had to rely on the document they should not have seen and since they shouldn’t have seen what they saw they may not say what it says without jeopardizing national security and since they can’t say what it says, they can’t prove that they were subject to surveillance and since they can’t prove that they were subject to surveillance, they should just go away.

Countering the government’s argument was Jon Eisenberg, one of the lawyers for the plaintiffs. Because of the secret nature of the proceedings he had to write an appellate brief in a government office supervised by a Justice Department security officer. He was not allowed to keep a copy of what he wrote. He was not allowed to read what the government lawyers gave the judge. In an e mail to the New York Times Mr. Eisenberg said: I’d say that’s the most bizarre brief-writing experience of my career.” My readers now have enough information to help them decide whether Mr. Bush’s approach is indeed worthy of Franz Kafka, as Mr. Eisenberg suggests. (Readers interested in a more serious examination of the issues in the case may read Mr. Eisenberg’s excellent brief that can be found online at Al-Haramain Islamic Foundation, Inc. et al vs. George W. Bush et al).

CHRISTOPHER BRAUCHLI is a laywer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu


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