[Infowarrior] - U.S. Defends Surveillance to 3 Skeptical Judges

[Richard Forno]

U.S. Defends Surveillance to 3 Skeptical Judges
By ADAM LIPTAK
Published: August 16, 2007

http://www.nytimes.com/2007/08/16/washington/16nsa.html?_r=1&hp&oref=slogin

SAN FRANCISCO, Aug. 15 ‹ Three federal appeals court judges hearing
challenges to the National Security Agency¹s surveillance programs appeared
skeptical of and sometimes hostile to the Bush administration¹s central
argument Wednesday: that national security concerns require that the
lawsuits be dismissed.

³Is it the government¹s position that when our country is engaged in a war
that the power of the executive when it comes to wiretapping is unchecked?²
Judge Harry Pregerson asked a government lawyer. His tone was one of
incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the
administration, replied that the courts had a role, though a limited one, in
assessing the government¹s assertion of the so-called state secrets
privilege, which can require the dismissal of suits that could endanger
national security. Judges, he said, must give executive branch
determinations ³utmost deference.²

³Litigating this action could result in exceptionally grave harm to the
national security of the United States,² Mr. Garre said, referring to the
assessment of intelligence officials.

The three judges, members of the United States Court of Appeals for the
Ninth Circuit, were hearing arguments in two lawsuits challenging the highly
classified surveillance programs, which the administration says are
essential in fighting international terrorism. The appeals were the first to
reach the court after dozens of suits against the government and
telecommunications companies over N.S.A. surveillance were consolidated last
year before the chief judge of the federal trial court here, Vaughn R.
Walker.

The appeals concern two related questions that must be answered before the
merits of the challenges can be considered: whether the plaintiffs can
clearly establish that they have been injured by the programs, giving them
standing to sue; and whether the state secrets privilege requires dismissal
of the suits on national security grounds.

Though the questions are preliminary, the impact of the appeals court¹s
ruling may be quite broad. Should it rule for the government on either
ground, the legality of the N.S.A. programs may never be adjudicated.

All three judges indicated that they were inclined to allow one or both
cases to go forward for at least limited additional proceedings before Judge
Walker.

The two cases deal with different secret programs, but are broadly similar.
One, a class action against AT&T, focuses mainly on accusations that the
company provided the N.S.A. its customers¹ phone and Internet communications
for a vast data-mining operation. The lawyers in the AT&T case call that
program, which the government has not acknowledged, a ³content dragnet.²

The second case, brought by an Islamic charity and two of its lawyers
against the government, concerns a program disclosed by The New York Times
in December 2005, which the administration calls the Terrorist Surveillance
Program. The program, which has since been submitted to a secret court¹s
supervision, bypassed court warrants in monitoring international
communications involving people in the United States.

Last month another federal appeals court, in Cincinnati, dismissed a suit
brought in Detroit by the American Civil Liberties Union, saying the
plaintiffs there, including lawyers and journalists, could not prove they
had been injured by this latter program.

Lawyers in the two cases that were argued Wednesday say they have such
proof. In the AT&T case, the plaintiffs submitted a sworn statement from a
former technician for the company who disclosed technical documents about
the installation of monitoring equipment at an AT&T Internet switching
center in San Francisco.

Mr. Garre, representing the administration, and Michael K. Kellogg, a lawyer
for AT&T, said the sworn statement was built on speculation and inferences.
Robert D. Fram, a lawyer for the plaintiffs, said the statement provided
more than enough direct evidence to allow the case to go forward.

Similarly, in the case brought by the charity, al-Haramain Islamic
Foundation, the plaintiffs say the government mistakenly provided them a
document, since reclaimed, that proves they were subject to surveillance
without court approval.

On Wednesday, Thomas M. Bondy, a Justice Department lawyer, told the court
that the document ³to this day remains totally classified.²

In both cases, the government said the plaintiffs¹ evidence was insufficient
to establish standing to sue, adding that even litigating the matter would
endanger national security. ³Whether plaintiffs were subjected to
surveillance is a state secret,² the Justice Department said in a recent
brief in the Haramain case, ³and information tending to confirm or deny that
fact is privileged.²

One of the judges on the panel, M. Margaret McKeown, seemed to endorse a
lower court finding that the wiretap program was no longer secret. ³We know
quite a lot² about the Terrorist Surveillance Program, said Judge McKeown,
who, like the third judge on the panel, Michael Daly Hawkins, was appointed
by President Bill Clinton.

Judge Pregerson, appointed by President Jimmy Carter, appeared irritated
with the government¹s arguments, and he became frustrated when Mr. Garre
said he could not provide simple answers to questions about the scope of a
recently amended 1978 law, the Foreign Intelligence Surveillance Act. Mr.
Garre said it was a complicated law.

³Can¹t be any more complicated than my phone bill,² Judge Pregerson said.