Holder's Dilemma: Will Justice Have to Pay Money to a Terrorist Organization?
Of all the tricky decisions Attorney General Eric Holder is facing right now, here's one that has lawyers at the Justice Department really scratching their heads. All things being equal, they would love nothing more than to let stand a federal judge's recent decision that President Bush's warrantless-wiretapping program was illegal, thereby avoiding further legal skirmishes over one of the Bush administration's most divisive legacies. But unless they appeal last month's landmark decision by Judge Vaughan Walker, the U.S. government may be forced to pay damages into the bank account of one of the plaintiffs in the case: an Islamic charity that has been formally declared a global terrorist organization.
Can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing "material support" to terrorists? "They've got a dilemma," says Jon Eisenberg, lawyer for the Al Haramain Islamic Foundation, a now defunct charity that sued the U.S. government more than four years ago, alleging that its rights were violated by the Bush wiretapping program. Nevertheless, Eisenberg adds, "in this country, if you violate the law you have to pay damages."
The stark nature of the choice was underscored late Friday night when Eisenberg and other lawyers in the case filed a motion, at Judge Walker's request, proposing a final judgment in the case now known as Al-Haramain Islamic Foundation v. Obama. Walker had asked for the filing in light of his March 31 finding that, as a result of the Bush wiretapping program, Al Haramain and two of its lawyers were subjected to "unlawful warrantless electronic surveillance" for 204 days between Feb. 19 and Sept. 9, 2004.
The plaintiffs' proposed order: the feds should pay a total of $610,000, or $203,400 per plaintiff. (The plaintiffs reached this figure using the maximum allowable damages of $100 a day for violations under the Foreign Intelligence Surveillance Act. That comes to a total of $20,400 per plaintiff. Then, using a standard multiplier for civil lawsuits, they added punitive damages of nine times that amount, or $183,600 per plaintiff.) To be sure, even Eisenberg concedes the issue is largely "symbolic" since Al Haramain—a group once accused by the Treasury Department of aiding Al Qaeda—has long since shut its doors. Any damages that are paid will likely end up going to a frozen or inactive bank account, he adds. "No money will end up going into the hands of actual terrorists," he stresses. Click here to see the plaintiffs' proposed judgment.
But even a symbolic payment to a defunct organization's frozen bank account could be problematic, potentially undermining a linchpin of the U.S. government's antiterrorist efforts. Accepting Walker's ruling could also undercut the government's ongoing investigations of current or former U.S. officials suspected of talking about the secret surveillance program to reporters. Until now, Holder's Justice Department has vigorously defended the Bush-era program, asserting (much to the chagrin of liberals and civil-liberties advocates) that Al Haramain's case should be thrown out under the "state secrets" doctrine—an argument that Walker rejected.
A Justice Department told Declassified on Tuesday that lawyers are researching the legality of making a damage award to an accused terrorist organization. When Holder appeared before the Senate Judiciary Committee last week, Sen. Arlen Specter asked him how the department intends to respond to Walker's ruling. "We have really not decided what we're going to do," Holder said. Specter pressed the question. "What do you think?" he asked, and Holder laughed. "Well, I think I haven't made up my mind yet."
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Michael Isikoff has been an award-winning investigative correspondent for Newsweek since 2004. He has written extensively on the U.S. government's war on terrorism, the conflicts in Iraq and Afghanistan, presidential politics and other national issues. His book, "Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War," co-written with David Corn, was an instant New York Times best-seller when it was published in September, 2006. The book was hailed by the New York Times Book Review as "fascinating reading" and "the most comprehensive account of the White House's political machinations" in the run up to the war in Iraq. Since January 2009, Isikoff has been an MSNBC contributor, making regular appearances on the Rachel Maddow Show and Hardball w/ Chris Matthews.
Ever since the events of September 11, Isikoff has broken repeated stories about the U.S. government's war on terror and won numerous journalism awards. His blog "DeClassified: Investigative Reporting in Real Time," which appears regularly on Newsweek's Web site and is written with MarkHosenball, has become a must-read for senior U.S. intelligence officials. Isikoff and Hosenball won the 2005 award from the Society of Professional Journalists for best investigative reporting online.
Isikoff's June 2002 Newsweek cover story on U.S. intelligence failures that preceded the 9-11 terror attacks, along with a series of related articles, was honored with the Investigative Reporters and Editors top prize for investigative reporting in magazine journalism. He was honored, along with a team of Newsweek reporters, by the Society of Professional Journalists for coverage of the Abu Ghraib scandal. For that coverage, Isikoff obtained exclusive internal White House, Justice Department and State Department memos showing how decisions made at the highest levels of the Bush administration led to abuses in the interrogation of terror suspects. Isikoff was also part of a reporting team that earned Newsweek the National Magazine Award for General Excellence in 2002, the highest award in magazine journalism, for their coverage of the aftermath of the September 11 terror attacks.
Isikoff's exclusive reporting on the Monica Lewinsky scandal gained him national attention in 1998, including profiles in The New York Times and The Washington Post and a guest appearance on "Late Show with David Letterman." His coverage of the events that lead to President Bill Clinton's impeachment earned Newsweek the prestigious National Magazine Award in the Reporting category in 1999. Isikoff's reporting also won the National Headliner Award, the Edgar A. Poe Award presented by the White House Correspondents Association and the Gerald R. Ford Journalism Prize for Reporting on the Presidency. In 2001, Isikoff was named on a list of "most influential journalists" in the nation's capital by Washingtonian magazine.
Isikoff is the author of "Uncovering Clinton: A Reporter's Story," a book that chronicled his own reporting of the Lewinsky story and was hailed by a critic for The Washington Post-Los Angeles Times news service as "the absolutely essential narrative of the scandal with revelations that no one would have thought possible." The book, also a New York Times bestseller, was named Best Non-Fiction Book of 1999 by the Book of the Month Club.
Isikoff came to Newsweek from The Washington Post, where he had been a reporter since September 1981. There he covered the Justice Department and the Persian Gulf War, reported on international drug operations in Latin America and worked on the Post's financial news desk. Isikoff graduated from Washington University with a B.A. in 1974 and received a Masters in Journalism from Northwestern University's Medill School of Journalism in 1976.
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