The government shredded his legal drafts--and his banana peel

Yesterday I posted about how Treasury Department officials inadvertently provided a Saudi charity with National Security Agency (NSA) call logs stamped "top secret." The legal case that resulted, Al-Haramain Islamic Foundation v. George W. Bush, is one of dozens that claim illegal spying by the U.S. government.

Oakland lawyer Jon Eisenberg, who represents the foundation, says that this is the strangest case he has ever handled. Why?

Eisenberg was required to write one of his briefs in a windowless government office, without notes or lawbooks, under the watchful eye of two federal security guards.

When he got hungry, one of the guards brought him a banana. And when he finished, a security official shredded all his drafts — and even the banana peel, Eisenberg said.

The case will be argued today before a three-judge panel of the U.S. 9th Circuit Court of Appeals. But much of the information will be kept secret. Eisenberg has to respond to a government filing he was not allowed to see.

Asked Monday if there was any way, under the government's interpretation of the law, that someone could contest the surveillance program, a senior Justice Department official replied, "In the current context, no."

He has to make arguments about something he has never seen or read. And his case is about whether Bush broke the law. If this case isn't allowed to go forward, then the case would "quietly die without a judicial determination of whether the president. . . has broken the law by conducting warrantless electronic surveillance in violation of the Foreign Intelligence Surveillance Act."

The Al-Haramain proceedings turned Kafkaesque in June, he said, when he was told he would have to write a brief in the government office.

How restricted was he? He had to guess at what was in redacted portions of the government's brief. He couldn't bring notes or law books into the tiny "hush hush" 8x10 foot room, stripped bare of everything but a table, chairs, a phone, a laptop, and a printer. His cell phone and personal laptop batteries were taken from him.

Asked if he had ever before had to write a brief without any notes or lawbooks, Eisenberg responded, "Of course not. Under any other circumstances, that would be malpractice."

He was provided with a copy of the 1978 FISA Act. How generous.

Guards stood outside of his cell little room, and when he was hungry for lunch, they graciously gave him....a banana. They later shredded the peel along with early drafts of his work. He wasn't allowed to keep drafts of his own briefs.

Asked for his thoughts about the experience, Eisenberg quoted his July 3 public brief: "The soul of America's government is transparency — openness in the affairs of its three constitutional branches." Weeks after Eisenberg filed his two briefs, the public one and the sealed one, the government filed reply briefs — one public and one under seal. Eisenberg and his colleagues have seen only the public brief.