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from: CNET

Appeals court may let NSA lawsuits proceed
By Declan McCullagh
Aug 15 20:06:53 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.

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.

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."

"I'm feeling like Alice in Wonderland," replied Judge M. Margaret McKeown.

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?"

The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not be discussed in a courtroom with reporters and the public in the audience.
Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired AT&T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an AT&T switching facility in downtown San Francisco on Folsom Street.

But administration officials have never been willing to deny a dragnet program in a signed affidavit made under penalty of perjury. That might derail the lawsuit against AT&T for now, but on the other hand, it could carry threat of criminal prosecution if the affidavit turned out to be a lie.

"What would be wrong with a a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant," Hawkins asked.

In December 2005, after the New York Times reported the existence of the NSA eavesdropping program, the president replied by saying: "I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

"Without admitting or denying that the government has a relationship with AT&T, I, Mr. or Mrs. So-and-So from the executive branch under oath, essentially affirm what President Bush said," McKeown suggested as wording for an affidavit. She said that because the government denies the dragnet program "and says they do not do any such surveillance without a warrant and there is no such program," the affidavit should be no problem.

Garre replied that such an affidavit is unnecessary because the president has already made a public statement.

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"At least the public (would have) the benefit of a sworn statement from a public official," Hawkins responded.

For its part, AT&T is asking that the lawsuit against it be dismissed in part because it claims to be unable to defend itself properly without veering into terrain that the Bush administration has staked out as state secrets.

The Foreign Intelligence Surveillance Act includes criminal penalties of up to five years in prison for government officials who engage "electronic surveillance under color of law except as authorized by statute." It also includes civil penalties, including punitive damages and attorney's fees, that someone who has been illegally "subjected to an electronic surveillance" can win in court.