Undercover Cover-Up

Thomas Nelson knew someone had been going through his northeast Portland law office. He didn’t know who, or why, but several times – from January to July 2005 – he noticed that papers on his desk had been moved and his computer rebooted. Yet, he says, ​“as far as I [could] tell, nothing was taken.”

Then he got an e-mail from Jon Norling, another lawyer in the same suite, alerting him that twice on a previous night someone posing as a member of the cleaning crew had tried to enter the office. ​“I know the cleaning crew,” Norling says. ​“For a while they were all Hispanic, and women. … [This was] a middle-aged white guy speaking perfect English.” A few weeks later, on July 5, it happened again.

Nelson met with the building manger, but was offered no explanations or solutions. Nelson started to feel nervous. ​“I didn’t know what they were doing, what they were looking for … so I moved all my files,” he says. He took them to his home in the mountain town of Zigzag, because ​“It’s more inconvenient to get there. The home has a burglar alarm, and there’s a gate getting into the subdivision.”

Still, within a few weeks he noticed more disturbing signs. Mulitple times, he came home to find that the electricity had been out and the alarm deactivated. The alarm company failed to follow protocol and notify him of the lapse in service. When he called to inquire, they were uncharacteristically circumspect. 

At that point, Nelson started to suspect federal involvement. ​“When the FBI wants to go to a place, they put out what’s called a ​‘National Security Letter,’” he explains. ​“That letter tells, for example, the landlord, or another person who might have to facilitate the entry, that it is illegal to ever say anything about the assistance that is provided. My guess is that those letters went out to the building management, including the security company, and to the alarm company.”

In December, when the New York Times revealed the existence of a National Security Agency (NSA) domestic eavesdropping program, the pieces started coming together. The NSA was listening in on international calls to or from the United States, and Nelson was representing an Islamic charity, Al-Haramain, that had been accused of funding Chechen terrorists. The charges were eventually dropped, but the organization’s director, Soliman Al-Buthe, is still wanted for illegally taking money out of the country. Al-Buthe now lives in Saudi Arabia, communicating with his attorneys largely by phone and e-mail.

Nelson won’t say how, but he had received a document showing, he says, that these confidential attorney-client conversations had been intercepted. He knew right away that the document was important, but didn’t realize just how important it was. When he learned of the NSA program, it seemed what he had was not just evidence of the government overstepping its bounds in one particular case, but evidence suggesting an entire program of government misconduct.

The break-ins suddenly made a lot more sense: ​“Keep in mind that these break-ins occurred after the illegal wiretaps and before the illegal wiretaps were public knowledge. It’s more than a neat coincidence,” Nelson says. ​“Overall, I think they were fishing for a document that they thought perhaps could forestall the entire NSA investigation that’s going on now.” 

In other words, the break-ins were part of an attempted cover-up. ​“It’s worrisome,” Nelson says, ​“that they went to that kind of effort to hide what we allege is an illegal program – not just ​‘kind of’ illegal, but a fundamental violation of basic constitutional principles.”

On Feb. 28, Nelson became the first attorney to file a suit alleging specific damages from the NSA spy program. The complaint–Al-Haramain Islamic Foundation v. Bush–accuses the NSA of monitoring communications between Al-Buthe and two of Al-Haramain’s lawyers, Wendell Belew and Asim Ghafoor. It also alleges that the NSA then shared its information with the Treasury Department, who used it to freeze Al-Haramain’s assets.

The NSA has refused to acknowledge or deny involvement. But Nelson’s theory is plausible. The sort of surveillance the lawsuit alleges – focusing on international calls to supposed terror suspects – fits within the scope of the NSA’s activities.

But it is impossible to verify Nelson’s specific claims without seeing the evidence. And the crucial document has not only been sealed by the court, but transferred to Seattle and placed in a sensitive compartmented information facility (SCIF) – a specialized vault designed to hold classified documents. Steve Borgen, the security expert for the U.S. Attorney who determined that the document should be stored in the SCIF, declined to say why it required such protection, saying only that ​“it just had to do with the content of the document itself.” Nelson won’t discuss its contents either, except to say ​“the document supports the allegation that’s in [our] complaint.”

However, Nelson suggests that the document is being so closely guarded, not because of the information it reports, but because of how that information was collected. ​“I think the interesting thing about the document isn’t what’s in it, but rather … that it supports our complaint of warrantless wiretapping.” If he’s right, then the government is protecting a secret that is already public knowledge. 

Nelson expects that the document will eventually be declassified. The Oregonian has petitioned the court to make it public. While the Justice Department opposes the newspaper’s motion altogether, Nelson asks only that the attorney-client correspondence be deleted.

In the meantime, Nelson is focused on the larger issue: ​“I don’t mind the spying. I don’t mind the eavesdropping. [But] do it through a judge,” he says. ​“If you take out the judges, which the NSA program does, you run a real serious possibility of tyranny.”