Shredding Your Banana Peel & Going Medieval on Your Hard Drive: DOJ's Litigation Security Group
Thu May 08, 2008 at 04:47:59 AM PDT
Today I have a piece in FindLaw, http://writ.news.findlaw.com/..., about the Justice Department's shadowy Litigation Security Group (LSG) and its unethical conduct in the Al-Haramain case--one of the only viable lawsuits against Bush's warrantless wiretapping program. Why? Because, unlike the other secret surveillance cases, the plaintiffs (an Islamic charity called Al-Haramain) can demonstrate that the government actually listened to their conversations. That's because, as the Treasury Department was preparing to freeze the organization's assets, it inadvertently sent Al-Haramain attorneys a Top Secret NSA log of intercepted calls. Doh! But this is only the beginning of the bungling. Read what I unearthed below.
On Monday, I will be moderating a panel on secret surveillance, featuring Eric Lichtblau, who won the Pulitizer Prize for breaking this story, as part of Whistleblower Week in Washington. The Government Accountability Project (GAP) is putting on the panel. Hope to see you at 9:00am at the Mott House, 122 Maryland Ave., across from the Supreme Court.
There's this secret Litigation Security Group of Justice Department employees, which is supposed to oversee the use of classified information in court cases. I had never heard of this group when I worked at the Department, and learned about it only from Patrick Radden Keefe's piece, appropriately entitled "State Secrets," in The New Yorker. After much persistence, being transferred ten times, and a lot of "no comments" from the DOJ, I was finally directed to the website of the Federal Judicial Center, the education and research agency for the federal courts, which had a link to a "pocket guide" for judges on the state secrets privilege and other, well, secretive stuff.
It says, in relevant part:
[t]he Department of Justice employs security specialists whose job it is to assist the courts in protecting the secrecy of classified information. There are ten security specialists employed by the Department . . . They constitute the Litigation Security Group. The security specialists are not lawyers, and they are organizationally quite separate from the government's representatives in court. Their obligation is to help the court protect classified information, not to assist the government's representatives in court.
But this is not how it worked in Al-Haramain case. The restrictions upon the charity's attorneys as they wrote their Ninth Circuit brief included: the attorneys had to write the brief at DOJ offices on a government computer; they could bring no notes or law books with them; and while the government and the judge could keep copies of the completed brief, Al-Haramain could not.
But here's where it gets really egregious. One of the government lawyers working on the case singled out one of the three Al-Haramain appellate attorneys by name and barred him from working on the brief. DOJ claims that the attorney raised "security concerns" because he had not allowed government computer techs to purge his computer of classified information--the professional way in which this is done is explained at the end of this paragraph. The preliminary drafts of the brief were shredded along the the peel of a banana one of the attorneys had eaten for lunch. When the security office and computer tech later wiped one of the attorney's computers clean of classified information, they did so by placing the hard drive on the floor and pounding it with a table leg.
Needless to say, this conduct is unprofessional and violates myriad state bar ethics rules, most significantly the numerous conflicts of interest raised by having a government-lawyer micro-manage the brief-writing of a party opponent. It undermines the adversarial process, and justice itself
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