From Harper’s Magazine, November 2007, p. 26:
THE CONVERSATION
From an August 15 exchange between Thomas Bondy, a Justice Department lawyer, and judges for the Ninth Circuit Court of Appeals, in the ongoing case of Al-Haramain Islamic Foundation v. George W. Bush. Al-Haramain, an Islamic charity in Oregon, sued the government after the Treasury Department accidentally released a document indicating that the charity and its attorneys had been illegally surveilled under the National Security Agency’s warrantless wiretapping program. The Justice Department has argued that the evidence is inconclusive and that hearing such a case would pose a threat to national security.
THOMAS BONDY: They don’t know. Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, “know,” they don’t know. What they mean when they say that is that they––although they think or believe or claim they were surveilled, it’s possible they weren’t surveilled, or it’s possible that any surveillance was supported fully lawfully by a court order, but that information, in the plaintiffs’ words, would be peculiarly within the knowledge of the government. Exactly. Indeed, it would be. They just can’t get access to that, and they admit it. So, that’s the first point. When they say they know, what they mean by that, on their own terms, is that they don’t know. That’s number one. Number two, it does not matter what they know. The harm to national security here, on a broader level, is public disclosure of this information, to protect the world from knowing, and whatever they know, or believe they know, or claim they know, it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled. They world doesn’t know that.
JUDGE MARGARET MCKEOWN: The only––the world knows what they think they know, whatever that is that they know.
BONDY: Exactly. And that’s less than actually knowing whether it’s true.
MCKEOWN: Boy, we are really splitting the knows.
BONDY: No, that’s a huge difference. The government hasn’t confirmed or denied––
JUDGE MICHAEL HAWKINS: Sounds like––
MCKEOWN: It reminds me of something––
HAWKINS: ––Donald Rumsfeld, yeah.
BONDY: But your honor, let me be plain. If it’s entirely possible, and I’m not saying one way or the other, obviously––
MCKEOWN: Right, because you don’t yet know.
BONDY: It’s entirely possible––
MCKEOWN: And we can’t know.
BONDY: It’s entirely possible that everything they think they know, just to give one example, is completely false. It’s possible, or maybe it’s partly true.
HAWKINS: There are things we know that we know, and there are things we don’t know that we don’t know.
BONDY: What I’m saying here is that, on the broadest level, the national security interest in this case isn’t in any way limited to what the plaintiffs know or think they know. The world at large doesn’t know. And the rest of the world has no way to know what they––what plaintiffs are trying to get in this case is to get it officially confirmed, one way or the other, whether they were surveilled. If that were officially confirmed or denied, one way or the other, that would be something of interest to people who are, you know, hostile intelligence entities who watch this stuff.
MCKEOWN: Do you think they’re watching this argument just to see if anybody knows?
BONDY: Well, I go back to my basic point. We just can’t confirm or deny.