US Defends Surveillance to 3 Skeptical Judges
SAN FRANCISCO - Three federal appeals court judges hearing challenges to the National Security Agency's surveillance programs appeared skeptical of and sometimes hostile to the Bush administration's central argument Wednesday: that national security concerns require that the lawsuits be dismissed.
"Is it the government's position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?" 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 government's 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 "utmost deference."
"Litigating this action could result in exceptionally grave harm to the national security of the United States," 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 court's 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 customers' 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 "content dragnet."
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 court's 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 "to this day remains totally classified."
In both cases, the government said the plaintiffs' evidence was insufficient to establish standing to sue, adding that even litigating the matter would endanger national security. "Whether plaintiffs were subjected to surveillance is a state secret," the Justice Department said in a recent brief in the Haramain case, "and information tending to confirm or deny that fact is privileged."
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. "We know quite a lot" 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 government's 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.
"Can't be any more complicated than my phone bill," Judge Pregerson said.
© 2007 The New York Times