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In trying to sort out litigation over the federal government’s once-secret wiretapping program, three 9th U.S. Circuit Court of Appeals 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. During last week’s hearing on two cases over the spying program created after the Sept. 11, 2001, 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. 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 Hepting v. AT&T, No. 06-17132, a class action filed last year by San Francisco’s Electronic Frontier Foundation, the panel seemed 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. 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 the judges that “the courts play an important role,” but insisted the case should be thrown out. The Hepting case is based largely on information provided by a former AT&T employee who said he saw a splitter that diverted all Internet and phone communications into a secret room set up by the government. 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. “If the government is not, as alleged in the complaint, intercepting millions of civilian communications, why is that a state secret?” The judges were less hostile to another Justice Department lawyer, Thomas Bondy, who sought to dismiss the second case, Al-Haramain v. USA, No. 06-36083. Here, 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. The charity sued the government, claiming they were illegally wiretapped. Judge Garr King of the U.S. District Court for the District of Oregon allowed the plaintiffs to file sealed briefs based on their recollection of the document. Bondy said the meaning of the surveillance outlined in the disclosed document 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 [Foreign Intelligence Surveillance Act] 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 San Francisco’s Eisenberg and Hancock who represents 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.

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