Original URL: http://www.theregister.co.uk/2007/08/17/oral_arguments_surveillance/

NSA surveillance and the reality-based community

Cheney to awake as oversized roach...err..wait

By Burke Hansen

Posted in Law, 17th August 2007 00:54 GMT

If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see? - Alice in Wonderland

I have to confess, the oral arguments in the Ninth Circuit Court of Appeals in San Francisco yesterday in a courtroom that poured into two overflow areas, were, in all their strangeness, at times difficult to follow, even for a practicing lawyer.

The magnificent marble hallways ideally would invite an equally sublime level of discourse, but the sad, tortured logic of the Cheney administration swirled again through the hallowed chambers of the judicial branch, spinning nowhere. The court confronted two cases brought against the administration for its massive, supra-legal domestic surveillance program, the one that may, or may not, be spying on us, and that may, or may not, even exist.

To acknowledge its mere existence - though the President may, or may not, have lied in acknowledging its existence, to throw critics and assorted other troublemakers off the scent - the government argued yesterday, in both cases, would be itself a violation of what is known as the "state secrets" privilege, and the attorneys for the government in both cases argued strenuously that the privilege is for all intents and purposes an absolute bar to litigation about those very programs - er - alleged programs.

The audacious circularity of the arguments by the executive branch brought out the sardonic wit of the judges, particularly Harry Pregerson, who repeatedly probed the government's attorneys about what oversight role, if any, would be left for the judicial branch. Pregerson noted almost wistfully, about 3,000 warrant requests that made it to the official court for surveillance activities, FISA, in 2005 and only one of those was denied, and that only in part. As Judge Margaret McKeown observed on more than one occasion, the government's argument boiled down to "trust us".

"The bottom line is, that once the executive declares that it's a state secret, that's the end of it - the king can do no wrong," Pregerson said.

Garre tried repeatedly to claim that the judicial branch should extend to the executive branch the "utmost deference" when confronted with government claims of state secrets. "Utmost deference. What does that mean? Just bow to it?" Judge Pregerson then asked Garre point blank if judges would be nothing more than a rubber stamp for executive branch state secret privilege claims.

Sentence first - verdict afterwards

The first oral arguments concerned the class action lawsuit, Hepting v. AT&T, filed by the Electronic Frontier Foundation (EFF) against the telecommunications giant for participating in the controversial secret surveillance program with the NSA. Room 641A at 611 Folsom St. in San Francisco, according to the EFF, functions as a massive data mining operation by the NSA, where splitters divert fiber optic signals into a secure NSA listening room. Although the administration has claimed that the surveillance program only targets foreign subjects, the room, if it is as alleged, is clearly capable of much, much more.

The argument surrounds a foundational element of the law - namely, whether plaintiffs under alleged surveillance even have what is called "standing" to sue for that very surveillance. Standing requires a prima facie showing of harm to an individual plaintiff. The problem, of course, is that the surveillance is secret, and the instant that a plaintiff alleges he or she has been illegally surveilled, the executive branch claims the "state secrets" privilege. This is a classic Catch-22, and it has so far made it impossible for Americans to challenge clandestine government action against its own citizens.

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