The days of the Bush administration may be numbered, but government lawyers were still hotly contesting flagship domestic surveillance litigation in Northern District of California federal court on Tuesday, with one lawyer warning that moving forward could disclose intelligence tradecraft and "destroy" government secrecy privileges.
"That's where the rubber hits the road," said Anthony Coppolino, special litigation counsel for the government.
Coppolino and co-counsel Carl Nichols, a high-ranking Department of Justice lawyer who has represented White House officials Harriet Miers and Joshua Bolten, argued for the dismissal of two cases consolidated before Chief Judge Vaughn Walker.
In Hepting v. AT&T, filed against telecommunications giants including Verizon and Sprint, retroactive immunity laws passed by Congress this summer may prove insurmountable for plaintiffs who want to prove the companies violated their customers' rights by allegedly helping the government conduct domestic wiretapping.
But the plaintiffs in Al-Haramain Islamic Foundation v. Bush, who are suing the government for warrantless electronic surveillance, may stand a better chance.
Walker and Coppolino circled around the issue of whether Al-Haramain could prove surveillance without an explicit admission by the government, which Coppolino has long insisted would be required for the plaintiffs to proceed.
But Walker pressed Coppolino, saying that the government's position was "unreasonable" and "made no sense" as he threw up his hands.
"Whether or not an individual has been subject to surveillance is information that is held by the government," said Coppolino, who added that disclosure would only occur "when the government chooses."
But Walker said he had already determined that was incorrect at prior hearings.
"What you're telling me is that it's impossible to prove aggrieved status; certainly that's not possible," he said.
In July, Walker dismissed Al-Haramain's complaint, ruling that the charity could not use a secret government document that had been accidentally disclosed years ago to prove the surveillance.
According to a Washington Post reporter who received the document from an Al-Haramain attorney in 2004, it contained "a summary of one or more conversations intercepted by the government."
Walker did, however, decide that the 1978 Foreign Intelligence Surveillance Act pre-empts the state secrets privilege, and allowed the charity to refile its complaint using nonclassified information to show it is an "aggrieved party" under FISA.
If Walker finds that Al-Haramain fits that definition, it would set in motion statutory procedures allowing Walker and the plaintiffs to utilize the sensitive document and potentially prove the spying occurred.
Jon Eisenberg, an attorney at Oakland, Calif.'s Eisenberg and Hancock who represents Al-Haramain, said during Tuesday's hearing that the public information he has compiled allows Walker to draw a "powerful inference" that the government spied on the charity.
"First, the FBI was investigating the Al-Haramain Islamic Foundation in 2004, FBI agent Gary Bald testified to that in public; next, the FBI used warrantless surveillance ... in pursuit of their goals, Director [Robert] Mueller testified to that before Congress; next, in February 2004, the Department of the Treasury issued its initial designation of Al-Haramain [as subject to an asset freeze]," Eisenberg said.
That initial designation did not mention Osama bin Laden, he said, so the fact that the Treasury alleged "direct links" to the al-Qaida mastermind later that year is circumstantial evidence that the government listened in on calls between Al-Haramain's lawyers and foreign nationals that mentioned bin Laden.
Coppolino countered that Al-Haramain still lacked "the most fundamental element of proof," which only the government could reveal.
But Walker seemed inclined to let the public evidence stand as proof, asking Eisenberg to lay out how the case would proceed if he granted Al-Haramain "aggrieved" status.
"It's quite conceivable that information that would otherwise be shielded under the state secrets privilege would be disclosed if FISA pre-empts," Walker said.
But Walker was more skeptical of the suits against the telecommunications companies, which ran into a critical roadblock when Congress passed the FISA Amendments Act of 2008 earlier this year.
"What we've seen is that this is an administration that has boasted that ... it's not bound by the other branches in conducting surveillance," said Richard Wiebe, a San Francisco solo representing the plaintiffs.
But that argument should have been made to Congress, Walker said.
"Congress made a determination that [suing the companies] is not in the national interest and gave us this statute," he said. "I'm the wrong person to be making that argument to; call up Sen. [Dianne] Feinstein."
Walker did express concern with what he called the "awfully broad" latitude the act gives to the attorney general.
Under the new law, courts must dismiss suits against telecommunications companies if the attorney general issues a special certification letter. But Walker can overrule the letter submitted in the Hepting case if he finds that it is not supported by "substantial evidence," a burden for which he sought clarification from the attorneys.
Nichols, the DOJ lawyer, said Walker should discuss his decision making solely with the government if he finds a lack of evidence, while Wiebe and Cindy Cohn, a plaintiffs attorney and legal director at the Electronic Frontier Foundation, said there should be an adversarial proceeding.