All Intensive Purposes

On Friday, a federal appellate court reversed a district court's ruling that the government's wireless surveillance of telephone calls (the Terrorist Surveillance Program) violated citizens' constitutional rights, ruling that the plaintiffs (including the ACLU) lacked standing to bring the claims because they had not established injury by asserting that their privacy had been violated. Thus, Judge Gibbons says, in his concurrence: "The disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP." The Sixth Circuit's decision is here; discussions of it by Jonathan Adler and Orin Kerr are at the Volokh Conspiracy.

Since the government is closely guarding the details of the program, one could imagine that the TSP will escape judicial scrutiny for lack of standing, which makes this story from Wired significant. A Washington, D.C., lawyer who was representing a Saudi charity was sent -- accidentally, surely -- a document recording surveillance of his communications:

Federal officials were investigating the Ashland, Oregon, branch of the group for alleged links to terrorism, and had already frozen the charity's U.S. assets. [Wendell] Belew was one of several lawyers trying to keep Al-Haramain off a U.S. Treasury Department watch list -- an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department's Washington D.C. headquarters across the street from the White House.

On Aug. 20, 2004, fellow Al-Haramain attorney Lynne Bernabei noticed one of the documents from Treasury was marked "top secret." Bernabei gave the document to attorneys and directors at Al-Haramain's Saudi Arabia headquarters, and gave a copy to Belew. The document was a log of phone conversations Belew and co-counsel Asim Ghafoor had held with a Saudi-based director for the charity named Soliman al-Buthi. . . .

It's not clear when officials realized they'd given a highly classified document to an organization they considered terrorist, but the FBI showed up at Belew's office in October and demanded the call log back, advising the lawyer not to attempt to remember the document's contents.

By then, Belew had given a copy of the document to Washington Post reporter David Ottaway, who had been writing about how the government investigated and listed individuals and groups suspected of funding terrorism. Ottaway did not report on the classified call log, and when the FBI called, the Post dutifully handed over its copy.

That might have been the end of it. But in December 2005 The New York Times revealed that the government had been spying on Americans' overseas communications without warrants, and Al-Haramain's lawyers realized why the FBI had been so adamant about getting the document back.

"I got up in the morning and read the story, and I thought, 'My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA," says Thomas Nelson, who represents Al-Haramain and Belew. "So we decided to file a lawsuit."

The lawyers retrieved one of the remaining copies of the document -- presumably from Saudi Arabia -- and used it to file a complaint in U.S. District Court in Oregon in February of last year. They sought damages from the government of $1 million each for Belew and Ghafoor, and the unfreezing of Al-Haramain's assets, because that action relied on the allegedly illegal spying.

The lawsuit is poised to blow a hole through a bizarre catch-22 that has dogged other legal efforts to challenge the Bush administration's warrantless surveillance. . . .

Belew's lawsuit is pending in the Northern District of California, before Hon. Vaugh Walker.