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Litigating In An Alice-in-wonderland World


Yesterday, Oakland attorney Jon B. Eisenberg had a remarkable piece over at Salon describing his experience representing the plaintiff in the case of Al Haramain v. Bush, which was also the subject of this article by Patrick Radden Keefe in the New Yorker in April. The gist of the case is this: Courts have held that in order to have legal standing to challenge the Bush administration's illegal wiretapping program, you need proof that you were spied on, which no one has. No one, that is, except for the Al Haramain Islamic Foundation, a now-defunct charity based in Oregon. The federal government accidentally sent Al Haramain a classified document apparently proving that it was a victim of the wiretapping program, which has become the basis of a lawsuit against the administration. The feds were none too pleased and tried a variety of hardball tactics to keep the lawsuit from moving forward, but were ultimately unsuccessful (mostly). Perhaps the most amusing part of Eisenberg's article comes when he describes the DOJ's efforts to eliminate from his laptop any traces of a secret brief he'd filed with the Ninth Circuit Court of Appeals (in response to a secret government brief that he hadn't actually been allowed to see). Eisenberg describes a scene vaguely remniscent of Office Space:

[DOJ official Erin] Hogarty brought someone she introduced simply as "Miguel." By this
time, alas, my laptop, which was old, was in its death throes. After
Miguel tried logging onto the laptop and encountered fatal errors, he
pronounced it dead. Hogarty asked me whether it would be OK if they
physically destroyed the hard drive. I'd bought a new laptop and had
managed to retrieve from the old one everything that I cared about, so
I agreed.

They had brought no tools with them. Hogarty was about to canvass
the building for a screwdriver, but I had a pending meeting elsewhere,
so Miguel made do by fashioning a crude implement from the metal clip
of his pen. He pried the back cover off the computer and removed the
hard drive and memory board.

The situation grew darkly comic. They didn't have a hammer, so they
started debating how to smash the hard drive. I suggested they smack it
against the corner of the table that was in the room. That didn't do
much. Hogarty then had an idea to put the thing on the floor and use a
table leg on it. Miguel put down the hard drive, picked up the table
and brought it down several times forcefully. The noise resounded, but
the hard drive was impervious. One of the table legs became bent from
the procedure.

Next, Miguel tried attacking the hard drive with his homemade tool.
Soon he'd managed to pry off the hard drive cover and commenced
scratching at the components. Meanwhile, Hogarty took the memory board
and began banging on it on the floor with a chair leg. The memory board
was weaker than the hard drive and cracked in several places. Then she
held the memory board in her hands and tried bending it, but Miguel
stopped her, warning that he'd seen someone get cut badly doing that--evidently they'd done this sort of thing before.

I found myself thinking of the Samsonite Gorilla, the TV commercial
from the 1970s in which a gorilla stomps on a piece of luggage that
just won't break. I thought: "These people are entrusted with our
national security?"

You really should read the whole thing. Al Haramain got a favorable ruling (pdf) last week from U.S. District Judge Vaughn Walker, who concluded that FISA limits the president's authority to assert the state secrets privilege in order to get cases dismissed. The lawsuit still faces considerable hurdles, since Walker and the Ninth Circuit have also ruled that Eisenberg and his team will have to demonstrate their client was spied on without use of the classified document that was accidentally sent to them. But it's an impressive story nevertheless, and in the wake of the new FISA legislation, the case looks to be the last opportunity to get courts to rule definitively on the legality of the wiretapping program.

--Josh Patashnik 

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