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.