Secret Agent Man | Jon Eisenberg

BY REBECCA BEYER

Here's something you should know about Jon B. Eisenberg: he hates discovery - loathes it, despises it, does his best to avoid it.

Perhaps he was destined, then, to represent the Al-Haramain Islamic Foundation in its quest to win a court order finding the warrantless wiretapping program undertaken by then-President George W. Bush after Sept. 11, 2001 unconstitutional. There was hardly any discovery in the case: The government refused to turn over anything.

"What we discovered was the state secrets privilege," said Eisenberg, 57, in a recent interview in his Oakland office.

Still, Eisenberg and the rest of his team won the ruling they were seeking. In March, Northern District Chief Judge Vaughn R. Walker ruled the program was illegal. That decision followed the judge's landmark July 2008 ruling that the state secrets privilege is preempted by the Foreign Intelligence Surveillance Act that governs oversight of executive branch surveillance.

"The case is about presidential power," Eisenberg said. "When presidents claim they have special power to do whatever they want regardless of what Congress says, there is grave, grave danger."

Long before he took on the government, before he became a lawyer, before he knew he hated discovery, Eisenberg, a North Hollywood native, worked as a warehouseman, a dishwasher and an accounting clerk.

"Eventually, I decided - very foolishly, since I didn't know any lawyers or what lawyers do - that I could go to law school and make big money and work short hours," he said. "That's what I thought lawyers did - they made big money and worked easy hours."

Eisenberg sighed.

"Some of them make good money," he said. "The ones who make big money don't work short hours."

Early in his career, after graduating from UC Hastings College of the Law in 1979, Eisenberg went to work as a research attorney at the 1st District Court of Appeal. Once assigned to Justice Donald B. King, he stayed 14 years - through King's time on the bench.

King said he thought Eisenberg was the best research attorney in the state.

"He was the only research attorney that other justices asked to borrow," he laughed.

After King retired, Eisenberg moved on, taking a job at Horvitz & Levy handling civil appeals. It was there, he said, that he learned to practice law.

"I didn't know how to fight," he said. "I didn't know how to litigate, how to stand up in front of a judge and basically hold my own while he or she dumped all over me. They taught me how to be a lawyer."

Eisenberg credits that experience - combined with his years at the appellate court - with preparing him for high-profile litigation "against powerful adversaries like the Department of Justice."

In 2006, Eisenberg formed Eisenberg and Hancock with William N. Hancock. He said he wanted to be able to do more pro bono cases, like his work assisting the attorneys for Michael Schiavo in the controversial right-to-die case involving Schiavo's wife, Terri. At the time, Eisenberg thought the Schiavo case was the most important of his career.

He was wrong. Five years after the attacks of Sept. 11, 2001, Eisenberg took on Al-Haramain, a designated terrorist organization, as a client. The case put him in the middle of some of the most controversial issues of the decade: the tension between the nation's security and civil liberties guarantees on one hand, and the limits of wartime executive branch power on the other.

Al-Haramain claimed to have proof that it and two of its attorneys were spied on: a top secret document the government accidentally turned over to them during an investigation into the group's assets in 2004. The plaintiffs filed the document with their complaint; it was soon put under seal.

The secretive nature of the case made for some interesting litigation practices: Once, after Eisenberg drafted a document that contained classified information, government officials destroyed the computer he used - by smashing it underneath the leg of a table in a room at the San Francisco federal courthouse. (see photo)

Eisenberg, who has called the case "Kafka-esque," said he knew the world had changed after 9/11.

"I just knew that for many, many years - maybe a generation - foreign affairs, domestic security were all going to be seen within the prism of this event," he said. "Did I ever dream I would get involved in anything like this? Did I ever dream specifically that the president would seize on this to change the entire nature of presidential power in this country? No."