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The government argued strenuously that a showing of state privilege in camera, in a sealed general denial unavailable to the plaintiff, should be sufficient to establish the state secrets privilege. Of course, none of that is under oath, which perturbed the judges greatly.

Judge McKeown pointed this flaw out, and Garre responded by noting that the President had acknowledged publicly that there was such a secret program, and "state secrets" therefore applies. McKeown scoffed at the idea that any court in the land would take an out of court pronouncement as sufficient to establish anything.

Well then, why can't the executive branch simply swear in court to the existence of the surveillance program and dispense with all this nonsense, you ask? And if it doesn't even exist, then how can it be classified as a secret, anyway?

Ah, there's the rub. To acknowledge the existence or non-existence of the program would itself reveal a state secret, since the President could well be lying, and the acknowledgment of the non-existence of the program itself could reveal sources, methods or operational details - the standard for the application of the state secrets privilege. To wit, the essence of the Catch-22: the public statement by the President revealing the existence of the program is sufficiently trustworthy to establish the existence of the program for purposes of claiming the state secrets privilege, but, existing in some quantum legal state of being either A or B at the same time, is simultaneously not sufficiently trustworthy to establish standing for the plaintiffs - because, after all, he could be lying.

It is not unethical or even uncommon for an attorney to argue in the alternative - to claim that incident A happened because of either B or C, even if those two possibilities are mutually exclusive. However, it is highly unusual to argue that the incident at issue itself could be two opposites simultaneously, and that the same legal result flows logically therefrom. He killed her, but, even though he didn't really kill her, your honor....

Robert Fram, the attorney for the EFF, seemed to gain a little more respect from the judges with his argument that the common law state secrets doctrine had been superseded by the law that established the FISA court - typically a subsequent statute in conflict with prior doctrine holds. He pointed out that the FISA law specifically provides judicial remedies for citizens victimized by illegal surveillance, and that Congress could therefore have not intended such a sweeping application of the state secrets doctrine. He also argued strenuously that the prima facie requirement for damages under the plain language of the FISA statute is satisfied with the mere act of warrantless surveillance itself.

"The gist of the evil here is the inappropriate giving of the communications. The violation is complete at the splitter cabinet," he said.

Pregerson remarked with a chuckle at one point that it all sounded like something out of Alice in Wonderland. Indeed, the AT&T attorney, Michael Kellogg, clearly flustered after being peppered with confrontational questions from McKeown in particular, admitted, “I have no idea what’s going on here.” That certainly brought some levity to the proceedings - and we couldn’t agree more.

We’ll tackle the oral arguments for the Al-Haramain case in another installment.®

Burke Hansen, attorney at large, heads a San Francisco law office

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