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Secret Data Exposed in Terrorism Case
Federal officials erred in releasing intelligence documents to
an Islamic charity's defense team.
By Greg Krikorian
Times Staff Writer
02/16/06 "Los
Angeles Times" -- -- Federal officials in Dallas
mistakenly disclosed classified counter-terrorism information in
a breach of national security that could also threaten one of
the country's biggest terrorism prosecution cases, newly
unsealed court records show.
The blunder exposed secret wiretap requests that commonly
include classified information from U.S. agencies, foreign
intelligence reports and confidential sources.
The criminal case involves officials of the Texas-based Holy
Land Foundation for Relief and Development, a now-defunct
Islamic charity with alleged ties to terrorists. Its assets were
frozen by the Treasury Department three months after the Sept.
11 attacks.
In announcing the seizure of the charity's funds, President Bush
told a Rose Garden gathering in December 2001 that the charity
was among those who "do business with terror."
Disclosure that the government erred in sharing secret
intelligence on the case came to light when court files were
unsealed this week. The mistake occurred nearly a year ago but
was not previously disclosed. KTVT-TV in Dallas first reported
the security breach late Tuesday.
The unsealed records, included in boxes of selected classified
data turned over to defense lawyers in April, included what a
federal prosecutor called "extraordinarily sensitive
information."
But it was more than four months before FBI agents discovered,
on Aug. 12, that the documents included still-secret data not
intended for release.
When authorities scrambled to retrieve the secret documents from
a courthouse room reserved for defense lawyers, a court security
official blocked their access, records show.
According to a government legal brief filed in the case, the
erroneous disclosures represent the first such misstep in the
27-year history of the nation's top-secret Foreign Intelligence
Surveillance Act court. Defense lawyers have always been denied
access to applications and affidavits justifying warrants for
national security surveillance.
Such documents commonly include highly sensitive and classified
information from a variety of U.S. intelligence agencies,
foreign intelligence services and confidential sources,
prosecutors acknowledged.
It was not immediately clear what defense lawyers learned in the
case. All sides are barred from discussing the still-classified
information.
But a protracted legal tussle over the documents produced a
number of sealed motions. Their release provided clues to the
extent of the security breach.
Defense motions show that Holy Land lawyers believe the
classified material benefits defendants and raises the
possibility that federal surveillance was authorized based on
misrepresentations, vague descriptions and fabricated testimony.
Once the nation's largest Muslim charity, Holy Land was shut
down by the Treasury Department in December 2001 on grounds that
it served as a fundraising front for the militant wing of Hamas,
a charge Holy Land officials have denied.
After the organization was closed and its assets frozen, the
U.S. attorney's office in Dallas won indictments against seven
Holy Land officials.
The criminal case is among the government's biggest post-Sept.
11 terrorism prosecutions.
Holy Land officials "effectively rewarded past — and encouraged
future — suicide bombings and terrorist activities on behalf of
Hamas," then-Atty. Gen. John Ashcroft said at a news conference
announcing the indictments in July 2004.
The indictment accused the charity of sending millions of
dollars to support organizations affiliated with Hamas,
including groups providing financial aid to widows and orphans
of suicide bombers.
At the time, a Holy Land official said "Hamas did not take a
penny" from the foundation. The charity's officials have
condemned terrorism in public statements and have denied giving
Hamas financial support.
Federal court records in Dallas make it clear that in the case
against Holy Land's officials, prosecutors rely heavily on
secret surveillance, anonymous FBI informants and intelligence
provided by Israel.
According to the government, authorities in the case have
compiled thousands of hours of wiretaps and more than 1 million
pages of documents that are classified and unclassified.
A belated attempt to recover the inadvertently shared portion of
the documents is described in court records. They relate an
unsuccessful showdown with defense lawyers over the mistake.
Dallas Assistant U.S. Atty. James T. Jacks acknowledged in court
documents that on April 5, 2005, the government turned over "a
large number" of electronic communications collected on three of
nine unidentified "subjects" of top-secret surveillance by the
FBI.
The materials, 16 boxes of classified information, were
delivered to a secure room in the federal courthouse in Dallas
that served as an office where defense lawyers — with security
clearances — were able to review the government's evidence as
approved by the court.
Defense lawyers were not permitted to remove their notes from
the room or to share details of classified information with
their clients.
The boxed materials included electronic discs, as well as about
80 volumes of translated summaries of conversations, Jacks said
in court papers.
The mistakenly released portions of the evidence included some
of the electronic communications and Foreign Intelligence
Surveillance Act material, including orders by the top-secret
court.
During a review of what defense lawyers characterized as a
mountain of documents "piled indiscriminately in unmarked
boxes," FBI agents discovered the error.
"Many documents were not stapled and pages were out of order,"
defense lawyers told the judge in a motion.
"The government provided no index. In short, it is clear from
the condition of the documents and manner of production that the
government took no steps to track and record the documents
produced and did not perform any quality control."
Jacks immediately sought to retrieve the documents, according to
court records.
He contacted a court security officer and asked for access to
the sealed room. The security official refused and said the
prosecutor would need defense counsel's approval to enter.
At that point, Jacks contacted a defense lawyer and asked for
access. Again, it was denied.
Jacks finally went to the secure room while defense lawyers were
there and "demanded to know what counsel were doing," according
to a defense motion.
Jacks declined to comment Wednesday, but in court papers he
defended his efforts to recover the documents.
"The government's paramount interest in seeking the return of
the information … is to protect the integrity of highly
classified and national security information to which no defense
counsel in the instant case is entitled," he said in a Sept. 16
letter to the court.
U.S. District Judge A. Joe Fish ruled the documents off-limits
to both sides and took custody of them. They remain in his
chambers.
Citing the classified nature of the material, defense lawyers
declined to comment.
Copyright 2006 Los Angeles Times
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