August 15th, 2007
9th Circuit looks poised to let NSA lawsuits go forward
The Ninth Circuit panel that heard arguments in a pair of lawsuits demanding more information about the NSA’s domestic wiretap operations appears unwilling to put a stop to the suits, as the Justice Department and AT&T requested, News.com reports.
The government argued that the suits must be dismissed because the judicial process would inevitably reveal state secrets. It “could compromise the sources, methods and operational details of our intelligence gathering capabilities,” Solicitor General Garre said.
The appeals court seemed unimpressed.
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.
In Hepting v. AT&T, the Electronic Frontier Foundation claimed AT&T had unlawfully opened its networks to the NSA. In the other case, Al-Haramain Islamic Foundation v. Bush the Treasury Department accidentally turned over a classifed document 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 said not only must the Al-Haramain case be thrown out but also the foundation’s attorneys may not even be allowed to refer to it, because their “mental recollections of the documents are also out of the case,” according to the government lawyer in that case.
“I’m feeling like Alice in Wonderland,” replied Judge M. Margaret McKeown.
Indeed, the court made no secret of its dismay with the government’s legal reasoning.
“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?”
AT&T is also moving to be dismissed from the lawsuit under the theory that it cannot defend itself without revealing state secrets.
