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In trying to sort out litigation over the federal government’s once-secret wiretapping program, three Ninth Circuit judges wanted to know whether a bit more candor from the government could make one suit go away. And in another, they seemed inclined to dismiss it themselves. At a Wednesday hearing on two cases over the spying program that followed the 9/11 attacks, Judges Harry Pregerson, M. Margaret McKeown and Michael Daly Hawkins seemed offended by the government’s wide-ranging invocation of the state secrets privilege but also unlikely to give plaintiff lawyers everything they want. The judges seemed to challenge federal lawyers to a game of chicken: whether the government could attest, under oath, that there was no domestic wiretapping in a case involving claims of a spy setup at AT&T’s offices to monitor all communications. In the first case, Hepting v. AT& T &# 151; a class action filed last year by San Francisco’s Electronic Frontier Foundation � the panel seemed far more skeptical of the government’s claims. “Is it the government’s position that when our country is engaged in war, that the power of the executive, when it comes to wiretapping, is unchecked?” asked Pregerson, who leans further to the left than perhaps any other Ninth Circuit judge. The deference owed the government “doesn’t mean abdication, does it?” Hawkins asked. Gregory Garre, the deputy solicitor general who argued for the government, assured them that “the courts play an important role,” but remained insistent that the case should be thrown out. The Hepting case is based largely on information provided by Mark Klein, a former AT&T employee who says he saw a splitter that diverted all Web and phone communications into a secret room set up by the government at the company’s Folsom Street office building. Michael Kellogg, who argued the case for AT&T, said no one outside the government knows what went on in the room, and that it therefore couldn’t be the foundation of the case. But Robert Fram, arguing for the plaintiffs, disagreed � he said that providing anything at all to the government without a warrant would violate federal law. “The gist of the evil here is in the inappropriate giving of the communications,” he said, adding that “the violation is complete at the splitter cabinet.” Fram seemed to get traction � with Hawkins in particular � when he argued that the Foreign Intelligence Surveillance Act, a federal law that allows warrants to be obtained through a secret court, preempts state secrets claims because it provides for damages if people are eavesdropped on without the proper procedure. All three judges seemed interested in whether the suit could move forward if the government denied the allegations that it was spying on domestic calls. Garre pointed out that President Bush has stated publicly that the program was focused on international calls. That wasn’t enough for Hawkins. “No court in the land would be satisfied with a public statement by anyone,” he said. McKeown was skeptical, too. “This puts us in the position of being in the ‘trust us’ category,” she said, since the judges would have to trust a government assertion that “‘we don’t do it. Trust us.’” But both judges wanted to know why the government couldn’t file a sworn statement if it is in fact telling the truth about not monitoring domestic communication. “If the government is not, as alleged in the complaint, intercepting millions of civilian communications, why is that a state secret?” Hawkins said. Garre said that would put the government in “a position where it would have to prove a negative,” he said. And Kellogg, the AT&T lawyer, was skeptical. “What the government isn’t doing can be a state secret,” he said. The judges were less hostile to another Justice Department lawyer, Thomas Bondy, as he argued to dismiss the second case, Al-Haramain v. U.S.A. In that case, a now-defunct Muslim charity in Oregon and its lawyers were accidentally given a classified government document in 2004 while they were trying to stay off a federal list of terrorist organizations. It was only after The New York Times reported on the warrantless wiretaps in December 2005 that the charity and its lawyers realized the significance of the document: They say it proves that they were illegally wiretapped. The charity and its attorneys sued the government last year. Rather than throw the case out when the state secrets privilege was invoked, Oregon U.S. District Judge Garr King allowed the plaintiffs to file sealed briefs based on their recollection of the document.
Tapping the Documents Read key documents (.pdf) in the Al-Haramain case before the Ninth Circuit: Government appealPlaintiff responseGovernment replyClick here for more documents from the Hepting case.

“The very subject matter of this case � which parties were even surveilled in the first place � is itself a state secret,” the Justice Department’s Bondy insisted. The Ninth Circuit panel remained nonplussed at the invocation of a wide state secrets privilege. Hawkins was incredulous � “Every ampersand and comma is top secret?” he asked � but, like McKeown, he seemed disinclined to uphold King’s ruling. But Bondy said the meaning of the surveillance outlined in the disclosed document, like the secret room in the Hepting case, isn’t fully known to the plaintiffs and the public � and must stay that way. “For all they know, it was fully and lawfully authorized by a FISA court order,” he said, again raising the question of why the government couldn’t file a sworn declaration attesting that the eavesdropping was clearly legal. Jon Eisenberg, the partner at Eisenberg and Hancock representing the Al Haramain plaintiffs, argued that there’s enough in the document to know that his clients have standing. “It does not matter how they were surveilled,” he said, acknowledging that, without ever having received the document, his clients probably could not prove standing. McKeown seemed troubled by the notion that an accidental disclosure could form the basis of a case and compared it to a document covered under attorney-client privilege accidentally disclosed in a suit. “You couldn’t use your recollection of that document,” she said, and Eisenberg agreed. “So why,” she asked, “is this any different?”

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