Lawyer: U.S. violated attorney privilege in Islamic case


The attorney for a defunct Islamic charity formerly based in Ashland has asked a federal judge to prohibit the Bush administration from intercepting communications protected by the attorney-client privilege.

Tom Nelson, the attorney for the Oregon chapter of the Al-Haramain Islamic Foundation, filed a request for a preliminary injunction in U.S. District Court on Thursday, claiming the federal government has intercepted privileged communications between the foundation and its lawyers.

The foundation is at the center of a case that may be the strongest challenge to the warrantless wiretapping program that President Bush authorized after the 2001 terrorist attacks.

The government accidentally turned over a top secret National Security Agency call log to foundation lawyers, who said it showed the NSA intercepted calls between the foundation director and two of its attorneys in Washington, D.C.

Nelson said in his preliminary injunction request that foundation attorneys believe the U.S. Treasury Department listed Al-Haramain as a "specially designated global terrorist" in September 2004 based on the intercepted calls.

"Not only did they do the wiretapping, they imposed a sanction based upon the material in the wiretap," Nelson told The Associated Press. "That stands traditional common law and traditional constitutional law on its head."

A U.S. Justice Department spokesman in Washington, D.C., said officials could not comment on pending litigation.

The injunction request says that Lynne Bernabei, another foundation attorney in Washington, D.C., wrote to a Justice Department attorney, Andrea Gacki, asking for written confirmation that privileged communications were not being monitored.

In response, Gacki wrote in a letter dated Nov. 2, 2007: "The United States government cannot publicly confirm or deny whether your clients' communications are being intercepted by classified means."

As a result, the foundation attorneys said they have "a reasonable suspicion" the government is monitoring their privileged communications.

Such monitoring violates attorney-client privilege, and it also violates their ethical duty toward clients and the Sixth Amendment right to effective assistance of counsel, according to the memorandum filed in support of the preliminary injunction.

The attorneys said such monitoring imposes a heavy burden on them because the former director of the Oregon chapter, Soliman al-Buthi, is in Saudi Arabia, requiring an expensive trip that takes up to 36 hours each way in order to communicate in person and avoid surveillance.

Nelson has already filed an ethics complaint with the Office of Professional Responsibility for the Justice Department, arguing that any government attorneys involved in the wiretapping may have violated their ethical duty and could face disciplinary action.

The original foundation lawsuit challenging the wiretapping was heard by the 9th U.S. Circuit Court of Appeals in San Francisco, which upheld a government claim the NSA document was protected under the "state secrets" doctrine that allows the president to prevent disclosure of sensitive information in court that could jeopardize national security.

But the appeals court sent the case back to a lower court to decide whether another law, the 1978 Foreign Intelligence Surveillance Act, trumps presidential claims of secrecy.

The case had originally been handled by a federal judge in Portland but was transferred during appeal to the U.S. District Court for the Northern District of California, where it is still pending.

Al-Haramain, based in Saudi Arabia, was dissolved by the Saudi government in 2004. A federal judge in 2005 dismissed tax charges against the Oregon chapter, based in Ashland, after federal prosecutors said further legal action was a waste of time because only a corporate shell remained.

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