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All the News That’s Fit to Leak

The strange case of the ‘New York Times’ and the al Haramain Foundation.

Apr 19, 2010, Vol. 15, No. 29 • By GABRIEL SCHOENFELD
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Was the Bush administration’s Terrorist Surveillance Program a violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which forbids domestic wiretapping without a warrant? And was the New York Times’s decision to reveal the existence of the highly classified program, against warnings that it would gravely damage national security, an act of journalistic heroism and a powerful blow on behalf of civil liberties?

All the News That’s Fit to Leak

Affirmative answers to both questions have been the standard liberal line ever since the Times broke the story of the NSA wiretapping program in December 2005. With a verdict on March 31 in the al Haramain Islamic Foundation case, the Times is claiming a stamp of approval for its actions from the courts. In a thunderous editorial, the paper declared that federal judge Vaughn Walker’s decision means that the NSA program was not only founded upon “spurious, often ludicrous, claims of national security” but that it was also flatly illegal: When the Bush administration, in investigating the terrorist ties of the al Haramain foundation, “failed to get a warrant to wiretap, it broke the law.” 

Yet the facts of the al Haramain litigation are not as uncomplicated as the Times would have it. They are a reminder both of the terrorist danger we face and our vulnerabilities as an open society trying to counter it. The episode is a classic example of lawfare, with a terrorist-supporting outfit turning the rule of law and due process against us. 

After September 11, the al Haramain Islamic Foundation, a “charity” based in Saudi Arabia with branches in Afghanistan, Somalia, Pakistan, Nigeria, and a number of other equally disagreeable locales, was banned worldwide under the strictures of a U.N. Security Council resolution aimed at cutting off support for “al Qaeda, Osama bin Laden and/or the Taliban wherever located.”

The Department of the Treasury deemed the U.S. branch a Specially Designated Global Terrorist Organization. Leaders of the foundation were placed on U.N. embargo lists. Whatever one makes of the case that came before Judge Walker, it is hard to see the al Haramain Islamic Foundation as anything other than a bad actor, a financial conduit for the worst of the worst.

But in our gloriously free country, the al Haramain Islamic Foundation enjoys rights, including the right to challenge its designation as a terrorist organization. It sued, and in 2004 in discovery proceedings, the Treasury Department mistakenly turned over a highly classified document making the foundation aware that it had been the object of government surveillance and evidently suggesting (the contents of the so-called “Sealed Document” remain sealed) that this may have been done without a warrant.

Attempting to correct Treasury’s blunder, the Bush administration sought to have the case tossed out of court by invoking the state-secrets privilege, a rule that allows the government to avoid having to defend a case in which sensitive national-security information is placed at risk. Invocation of the state-secrets privilege can be an ugly legal move; when a case is terminated summarily on the say-so of the executive branch, justice can be capriciously sidestepped and denied. But in this instance, an appeals court panel reviewed the Sealed Document and found that “the basis for the privilege is exceptionally well documented” and that disclosure of “information concerning the Sealed Document and the means, sources and methods of intelligence gathering in the context of this case would undermine the government’s capabilities and compromise national security.” With the Sealed Document deemed inadmissible, the al Haramain foundation’s challenge of its designation as a terrorist organization went nowhere. 

But the appearance in December 2005 of the Times story about the NSA wiretapping paved a new avenue for its attorneys. Public sources were now, for the first time, becoming available that could help construct a nonclassified evidentiary basis that the U.S. government had engaged in surveillance outside of the FISA framework, opening the possibility that the government could be sued. Then in 2007 an FBI official confirmed (in a speech to the American Bankers Association that was posted on the FBI’s website) that al Haramain had been surveilled (without specifying exactly by what means). From this lapse arose the claim against the U.S. government, alleging that the surveillance was warrantless and therefore trampled on an array of constitutional rights.

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