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Judges question Bush administration bid
to dismiss spying lawsuits

"The power of the government is unchecked"

Photo courtesy University Press

By Julia Cheever

August 15, 2007

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.

When Will Americans Have Had Enough

Copyright © 2007 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.




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