Over at Wired, bloggers Ryan Singel and David Kravets just finished liveblogging the U.S. 9th Circuit Appeals court hearing on the companion cases Hepting v. AT&T and Al-Haramain Islamic Foundation v. Bush.
Below are some thoughts on their report of the hearing.
Hepting involves the District Court's denial of the US Government's motion to dismiss the Electronic Frontier Foundation's (EFF) class action claim against AT&T for collaborating with the NSA to illegally monitor domestic communications in violation of FISA.
Al-Haramain is an Islamic charity which claims it was illegally spied on by the US Government.
Assistant U.S. Attorney General Thomas Bondy will argue for the government in the Al-Haramain challenge, while Deputy Solicitor General Gregory Garre will handle the government's side in the AT&T case.
The Electronic Frontier Foundation, which filed the challenge to AT&T, is being represented by Robert Fram, a San Francisco-based attorney.
Hepting v. AT&T
The Government and AT&T argued first as the Appellants in Hepting.
This case is based on evidence provided to EFF by (former) AT&T employee and whistle blower Mark Klein, a technician who helped install the spy technology at AT&T's San Francisco office.
(Note: The trial court barred EFF, as the entity that brought the lawsuit, from publicly disclosing Klein's evidence on the grounds that the docs were state secrets. Klein, who was under no similar order, released the documents himself, which are available at the EFF link above.)
Garre, the Bush administration attorney, just opened oral arguments by telling the three-judge panel that it should dismiss outright the lawsuit against AT&T, and those challenging the constitutionality of the president's warrantless and domestic eavesdropping program developed.
"Litigating this action could result in exceptionally gave harm to national security in the United States," says Deputy Solicitor General Gregory Garr.
Right off the bat, the Government argues that the whole case should be dismissed on the basis of National Security - basically claiming that the Administration can decide which cases the courts can be allowed to hear (ah, the joys of the Unitary Executive).
Luckily for the Constitution, Judge Harry Pregerson appears to be having none of it:
Judge Harry Pregerson suggests the government is asking the courts to "rubber stamp" the government's claim that state secrets are at risk "Who decides whether something is a state secret or not? ... We have to take the word of the members of the executive branch that something is a state secret?"
Garre counters that the courts should give "utmost deference" to the Bush administration.
Judge Pregerson: "What does utmost deference mean? Bow to it?"
The livebloggers note that all three judges are skeptical of the blanket National Security privilege argument. One thing's for sure, the judges can't be too happy with answers like this from the Administration attorrney:
"Was a warrant obtained in this case?" Judge Pregerson asks.
"That gets into matters that were protected by state secrets," Garre replies.
Garre then claims the Administration is not even spying on purely domestic communications:
Judge McKeown asks whether the government stands by President Bush's statements that purely-domestic communications, where both parties are in the United States, are not being monitored without warrants.
"Does the government stand behind that statement," McKeown asks.
Garre: "Yes, your honor."
Garre says the government would not be willing to sign a sworn affidavit to that effect for the court record.
So even though Garre says the Administration "stands behind" Bush's statement that there was no domestic spying, the Administration is unwilling to sign a sworn affidavit to that effect.
(Question: Can any legal ethics gurus out there tell me why an attorney's statement in a formal court proceeding on behalf of his client shouldn't have the same legal affect as an affidavit by the client?)
Garre wraps up his arguments by trying to play down Klein's evidence:
Government attorney Garre doesn't think much of the secret documents provided to EFF by whistle blower Mark Klein -- which outline a room that is capable of widespread investigation of internet packets from multiple ISPs and backbone providers.
Garre described the documents as showing the secret room "has a leaky air conditioner and some loose cables in the room."
A "leaky air conditioner and some loose cables" notwithstanding, the documents also describe an impressive array of supercomputers also stored in that office.
Now comes AT&T attorney Michael Kellogg, who also wants the case dismissed:
He says AT&T customers have no actual proof or direct knowledge that their communications were forwarded to the government without warrants.
Remember that the Government just refused to answer whether a warrant has been issued, so technically Kellogg is correct. If you don't know whether warrants were issued, you can't say that the information was passed without them.
Kellogg presses on with his legal Catch 22 interpretation:
"The government has said that whatever AT&T is doing with the government is a state secret," Kellogg says. He adds, "As a consequence, no evidence can come in whether the individuals' communications were ever accepted or whether we played any role in it."
AT&T's rationale here echoes the 6th Circuit's recent ruling in ACLU v. NSA (PDF) that the plaintiffs lack standing to sue because they cannot prove they were actually spied on, and cannot obtain evidence to establish that they were spied on because that information is a state secret.
Next up, EFF as the appellee:
Robert Fram is up for EFF. He's outlining the allegations based on the Klein documents.
"There is a splitter cabinet on the 7th floor on 611 Folsom Street. He (Klein) knows, because it was his job to oversee the room. He installed the circuits." Fram adds that "the splitter cabinet sends the light signal on the seventh floor where the SG-3 study room is located."
The splitter cabinet is important, because this is the mechanism that allows the NSA to tap directly into the trunk of AT&T's fiber optic cable, and rout all of that traffic through the NSA office inside the central office building.
The location of the splitter outside the NSA office is also important, as we shall see later.
Fram argues that the Foreign Intelligence Surveillance Act (FISA) allows people to challenge even the most secret electronic spying, by permitting courts to hear the government's evidence in chambers.
Here you go, a simple, straightforward argument against this government's Kafka-esque approach: let the courts look at the information in private (which is, after all, what FISA is all about).
He's also carefully trying to say that EFF doesn't want any more information on sources and methods of the NSA, arguing that the mere existence of the secret room is good enough under the law to prove the existence of surveillance, regardless of what the government does once it has the internet packets.
"We have completed the privacy violation on the handover of the internet traffic at the splitter into the secret room, which room has limited access to NSA-cleared employees," Fram says. "What is not part of our claim is what happens inside that room."
Here's why the location of the splitter outside the NSA office is important, because it allows EFF to make the claim that NSA is monitoring AT&T's traffic without ever having to know what's going on inside the NSA office. The simple fact that all of that traffic is going into the NSA office, EFF claims, is enough to say the NSA is monitoring it.
Judge M. Margaret McKeown, however, may not be buying it:
"There's a Las Vegas quality to your argument," McKeown tells Fram, alluding to the "What Happens in Vegas, Stays in Vegas" commercials.
EFF (Fram) says that's not the point:
Fram argues that Congress broadly defined surveillance in the 1978 FISA law, which was spurred by revelations in the 1970s of widespread government surveillance of American citizens.
"What Congress did is it established a protective perimeter for our privacy," Fram says. "Congress wanted to have some set of rights that could be clearly enforced."
Those rules, Fram argues, means that you were part of a mass dragnet surveillance if one of your e-mails went into the room on Folsom Street, even if the government wasn't targeting you specifically.
Perhaps even more critical to this particular case, unfortunately, may be Judge McKeown's statement that EFF hasn't proved that AT&T is actually in collusion with the NSA.
"You haven't proved what the relation is between AT&T and the government," (says) McKeown
Fram counters that if there were no wiretapping relationship, why are non-NSA approved technicians, like Klien, not allowed in the room?
"Maybe Klein is wrong and AT&T and the government can come in and say that room is available to all technicians. But they haven't done that," says Fram.
Garre gets the last bite of the apple for the Government in rebuttal:
"Plaintiffs acknowledge that the room is central to their case and that they don't know what is going on in that room," says Garre. "Something else could be going on in that room. Just to pick one, it could be FISA court surveillance in that room."
Back to the Kafka defense. Since you don't know what's going on, and we don't have to tell you, you can't prove your case.
The bloggers' first hand feel at the close of the Hepting arguments:
On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers.
Al-Haramain
Next up, the Al-Haramain Islamic Foundation case, with Assistant U.S. Attorney General Thomas Bondy leading off by parroting the previous state secrets arguments:
"The state secrets privilege requires dismissal of this case."
Whether the foundation's lawyers were spied upon, which is the subject of the case, "Is itself a state secret," Bondy argues.
Getting the picture here? Now it gets really weird:
Expanding on that theme, the government argues that the Al-Haramain case needs to be thrown out because the secret document that the government accidentally gave the foundation is so secret that it is outside of the case.
Bondy claims the plaintiff's memories of the document can't be allowed into the case because the only way to test them is against the "totally classified" document.
As Kagro X explained this morning, the plaintiff's attorneys were forced to view the documents without being able to make any notes. They also had to write their briefs under the constant surveillance of Government authorities (so wrong on so many levels).
Yet even after all of this rigmarole, the government now claims the attorney's recollections are inadmissible because they can't be verified against the documents the government won't allow the court to see.
Judge Hawkins (the third of the 3 judges on the Appellate Panel) is skeptical:
"Every ampersand, every comma is Top Secret?," Hawkins asks.
Yup, says Bondy:
"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," Bondy answers.
The government says the purported log of calls between one of the Islamic charity directors and two American lawyers is classified Top Secret and has the SCI level, meaning that it is "secure Sensitive (ed. per knocienz) Cheshire compartmented information." That designation usually applies to surveillance information.
This allusion to 'Cheshire' inspires the judicial money quote:
Judge McKeown: "I feel like I'm in Alice in Wonderland.".
This is the same Judge McKeown who had earlier shown some skepticism about EFF's case, so her exasperation here may be a good sign.
Al-Haramain lawyer Eisenberg, in a nice bit of legal jiu-jitsu, then turns the state secrets claim on its head:
Eisenberg argues the government's rationale for dismissing the cases on state secrets grounds doesn't apply to his clients, since they already know they were surveilled from seeing the secret document.
Simply put: Once the plaintiffs know they are being spied on, it 's not a secret.
The plaintiffs found out about the surveillance after the Treasury Department inadvertently disclosed a log of the plaintiff's phone calls.
Judge McKeown asks if this affects their case:
McKeown asks whether the foundation's attorneys would have a case if the government hadn't inadvertently disclosed the call log.
"We wouldn't have known we were surveilled," Eisenberg replies. "Had they not made a mistake and revealed it to the victims... who would be out here to sue?"
End of oral argument.
But just the beginning of the discussion.
Update: Wow! Thanks everyone! I'm floored!
In keeping with DC Pol Sci's and SallyCat's fine idea, if you feel at all inspired to help save our Constitution and our democracy, show some love to the EFF and the ACLU.
We need both of these fine organizations now more than ever.
Update 2: Jeff in CA also liveblogged the hearing here. Go check it out.
A great diary that deserves at the very least to be rescued (hint, hint).
H/T: SarahLee
Update 3: scorponic delivers an impeccable analysis of the legal ethics/evidence question above. Diary also updated.
Update 4: WaPo has more of the banter:
"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "
Of course, how can you not love this line from Judge Pregerson?
At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available.
"What is that? Impeachment?" Pregerson shot back.
When all else fails I guess...
Update 5: The 9th Circuit has posted an audio file of the hearing available for download.
Click here to begin downloading. (14.42 MB) (.wma)
Alternatively, click here for the master list of hearing files.
The Hepting audio file is located under the 08/15/07 date column at 06-17132 (14.42 MB).