[Infowarrior] - Appeals court may let NSA lawsuits proceed

[Richard Forno]

Appeals court may let NSA lawsuits proceed

By Declan McCullagh
http://news.com.com/Appeals+court+may+let+NSA+lawsuits+proceed/2100-1028_3-6
202865.html

Story last modified Wed Aug 15 17:23:16 PDT 2007

SAN FRANCISCO--A federal appeals court on Wednesday appeared unwilling to
end a pair of lawsuits that claim the Bush administration engaged in
widespread illegal surveillance of Americans.

The 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the
Bush administration's deputy solicitor general, to justify his requests to
toss out the suits on grounds they could endanger national security by
possibly revealing "state secrets."

Judge Harry Pregerson wondered: "We just have to take the word of members of
the executive branch that it's a state secret. That's what you're saying,
isn't it?"

A moment later Judge Michael Hawkins suggested that granting the request
could "mean abdication" of our duties.

At the heart of both cases is the U.S. Department of Justice's argument that
any lawsuit claiming illegal activity on behalf of AT&T and the National
Security Agency--even if the eavesdropping is known to have taken
place--cannot proceed because they could let enemies and terrorists know how
the government's surveillance apparatus works.

It "could compromise the sources, methods and operational details of our
intelligence gathering capabilities," Solicitor General Garre said.

In the first case, called Hepting v. AT&T, the Electronic Frontier
Foundation and other attorneys had filed a class action lawsuit against AT&T
saying it unlawfully opened its networks to the NSA. U.S. District Judge
Vaughn Walker in San Francisco ruled last summer that it could proceed.

The second case, Al-Haramain Islamic Foundation v. President Bush, is
unique: it involves a classified document that the U.S. Treasury Department
accidentally turned over to an attorney for the foundation. The top-secret
document showed, according to the group, "Al-Haramain and its attorneys had
been subjected to warrantless surveillance in violation of" federal law.
They responded by filing another lawsuit in February 2006 alleging
violations of the Foreign Intelligence Surveillance Act.
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The Justice Department says the Al-Haramain case must be thrown out because
it, too, could endanger state secrets. The foundation's attorneys must not
even be allowed to refer to it, government attorney Thomas Bondy said
Wednesday, because their "mental recollections of the documents are also out
of the case."

While no decision was announced Wednesday, and a final ruling could take
months to reach, a three-judge panel of the 9th Circuit pressed prosecutors
to justify asking that the case be dismissed based on declarations submitted
by senior Bush administration officials. (All three judges are Democratic
appointees.)

"The bottom line here is that once the executive declares that certain
activity is a state secret, that's the end of it?" Pregerson asked. "No
cases, no litigation, absolute immunity? The king can do no wrong?"