By Carol D. Leonnig and Mary Beth Sheridan
Washington Post Staff Writers
Thursday, March 2, 2006
Documents cited in federal court by a defunct Islamic charity may provide the first detailed evidence of U.S. residents being spied upon by President Bush's secret eavesdropping program, according to the organization's lawsuit and a source familiar with the case.
The al-Haramain Islamic Foundation, a Saudi organization that once operated in Portland, Ore., filed a description of classified government records in a lawsuit Tuesday and immediately asked a judge for a private review.
According to a source familiar with the case, the records indicate that the National Security Agency intercepted several conversations in March and April 2004 between al-Haramain's director, who was in Saudi Arabia, and two U.S. citizens in Washington who were working as lawyers for the organization.
The government intercepted the conversations without court permission and in violation of the law, al-Haramain asserts in its lawsuit. It contends that eavesdropping on the conversations bypassed the Foreign Intelligence Surveillance Act, the 1978 law that requires the government to show probable cause that a U.S. resident is an agent of a terrorist group or foreign government and to obtain a warrant from the secret FISA court before monitoring that person's calls.
Experts on FISA, while emphasizing that they are unfamiliar with the specifics of the al-Haramain case, said they question whether a FISA judge would agree to allow surveillance of conversations between U.S. lawyers and their client under the general circumstances described in the lawsuit.
In October 2001, Bush ordered the NSA to begin monitoring some telephone calls and e-mails of U.S. residents and contacts abroad if one party was suspected to have links to terrorism. The government has said that FISA did not allow it to move quickly enough to track suspected terrorists after the Sept. 11, 2001, attacks.
Several targets of government terrorism prosecutions have challenged the warrantless eavesdropping in courts nationwide since news reports in December revealed the existence of the secret surveillance program. Most of those challenges have centered on suspicion that prosecutors used information from warrantless wiretaps to build cases in terrorism investigations.
This lawsuit appears to be the first to cite the government's own documents of intercepted conversations and e-mails as the reason to suspect NSA surveillance. The government has acknowledged that it targeted Iyman Faris, who pleaded guilty in 2003 to plotting to blow up the Brooklyn Bridge, for surveillance under the NSA program. Several convicted members of a group described by prosecutors as Virginia jihad network have said they believe they were targets of surveillance. The government has said it either has no evidence to support the allegation or is still investigating.
Yesterday, Justice Department spokesman Brian Roehrkasse said authorities will review al-Haramain's filing. He declined to comment further.
The lawsuit says that a director of al-Haramain, Suliman al-Buthe, once operated the nonprofit group in Ashland, Ore., but relocated to Saudi Arabia because of U.S. government pressure.
The Treasury Department's Office of Foreign Assets Control froze the foundation's U.S. assets in February 2004, pending an investigation, and designated it a terrorist organization in September 2004, citing ties to Osama bin Laden. Al-Haramain was indicted in February 2005 on charges of conspiring to defraud the United States in connection with a scheme to funnel money to Chechen fighters. The charges were later dropped because the Oregon branch of the organization had shut down.
The lawsuit contends that al-Buthe's conversations with people in the United States were illegally intercepted. In May 2004, the suit says, government officials provided al-Buthe -- apparently by accident -- copies of conversations he had with attorneys Wendell Belew and Asim Ghafoor.
Later in 2004, the FBI demanded the records back, according to a source familiar with the case.
Tom Nelson, an attorney for al-Haramain who filed the suit, declined yesterday to confirm the existence of any classified records or tangible evidence buttressing the suit.
However, court records show, Nelson filed a motion to place material under seal as part of the suit Tuesday, and made a formal request to the judge overseeing the case to review the unspecified documents privately.