Three judges of the 9th U.S. Circuit Court of Appeals questioned
government lawyers in San Francisco today about the reach of the
Bush Administration's claim that domestic spying lawsuits must
be dismissed to protect national security.
Judge Harry Pregerson asked, "Are you saying the court should
rubber-stamp the government's determination?"
Pregerson said, "Here's the thing that bothers me. The government's
position is that when the country is engaged in a war, the power
of the government is unchecked."
Deputy U.S. Solicitor General Gregory Garre and Justice Department
attorney Thomas Bondy, arguing appeals in two different cases,
responded that courts do have a role in evaluating national security
officials' sworn statements that state secrets are at stake.
Garre said, "You can look at the declaration and make an
assessment."
But Garre added that courts must give "utmost deference"
to declarations such as one submitted last year by former national
intelligence director John Negroponte.
In the two cases argued today, the government is appealing lower
court rulings refusing to dismiss lawsuits challenging warrantless
surveillance of telephone calls and e-mails within the United
States.
One lawsuit was filed by four Californians against AT&T Corp.
for allegedly giving National Security Administration the telephone
and Internet records of millions of Americans without a court-approved
search warrant.
The second case was filed against President Bush and other officials
by the now-defunct the Al-Haramain Islamic Foundation Inc. and
two lawyers who claim their telephone calls were intercepted.
The panel took the cases under submission after more than two
hours of argument and will issue a written ruling at a later date.
Its decision is virtually certain to be appealed to an expanded
circuit court panel and to the U.S. Supreme Court.
The two cases are among about 45 surveillance lawsuits from around
the country that have been consolidated in the court of U.S. District
Vaughn Walker in San Francisco. Most were filed against telecommunications
companies.
The outcome of the appeal is expected to determine whether any
such lawsuits can continue in court.
The government contends that revealing any details of surveillance
- or even confirming or denying its existence - would aid terrorists.
Garre told the panel, "Litigating this action could result
in exceptionally great harm to the national security of the United
States."
Plaintiffs maintain they can pursue their claims that federal
laws were broken without revealing security secrets.
The four Californians' lawsuit against AT&T, filed by attorneys
from the San Francisco based Electronic Frontier Foundation, is
considered the lead case because it was the first to be filed.
It was lodged in federal court in San Francisco in January 2006,
following disclosures by the New York Times and other newspapers
about the surveillance program in December 2005.
During the AT&T arguments, Judge Margaret McKeown cited a
statement in which President Bush said in May 2006, "The
government does not listen to domestic phone calls without court
approval."
She and the third judge on the panel, Michael Hawkins, suggested
the AT&T case could be kept in court and resolved if a high-ranking
official submitted a declaration confirming Bush's statement.
AT&T might then be able win a summary judgment ending the
case, they suggested.
Hawkins said, "It might be helpful to assure the public
that what is alleged in this complaint - the widespread interception
of Americans' communications - is not happening."
But Garre argued that while the Justice Department "stands
behind" Bush's statement, the step suggested by the two judges
would "take us into investigating operational details or
potential gaps" in surveillance and thus endangering security.
The second case heard, the Al-Haramain lawsuit, is unique among
the lawsuits because it is the only one in which the plaintiffs
say they had proof they were personally subjected to warrantless
surveillance.
The alleged proof has been described outside of court as a top-secret
log of intercepted phone calls that was accidentally given by
U.S. Treasury Department officials to lawyers for the Islamic
charity in 2004.
The FBI later retrieved all copies of the document, but a federal
judge in Oregon allowed the lawsuit filed in February 2006 to
proceed on the basis of lawyers' confidential statements about
their memories of the material. The case was later transferred
to Walker's court.
Oakland attorney Jon Eisenberg, representing the charity, told
the court, "The government made a big mistake. They provided
evidence of surveillance to the victim of surveillance."
Eisenberg, while denying that Al-Haramain was a terrorist group,
said the government's claim that knowledge of surveillance could
cause terrorists to alter their actions doesn't apply because
the plaintiffs already know about the surveillance.
Bondy argued, however, "It's entirely possible that everything
they think they have is completely false."
McKeown and Hawkins expressed doubts about whether the case should
be allowed to stay in court on the basis of lawyers' memory of
the document.
Earlier this month, Congress passed and Bush signed a revised
surveillance law broadening the circumstances in which officials
can intercept phone calls and e-mail without a warrant.
But plaintiffs in the lawsuits say that testimony by officials
in favor of the new law supports their contention that the previous
surveillance was illegal and required a warrant.
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