Domestic Spying Programs Under Fire In Court

Wednesday, August 15, 2007

The Ninth Circuit Court of Appeals heard arguments in two lawsuits brought by groups who believe they've been subjects of the government's eavesdropping.

One group, led by the Electronic Frontier Foundation, is suing AT&T for allegedly funneling phone lines wholesale into computers, and then turning the information over to the government.

The second suit involves an Islamic organization, which is suing the government on grounds that they've got proof they were the victims of an illegal wire tap.

The issues before the Ninth Circuit are whether these lawsuits can proceed or should they be squashed because a trial would threaten national security.

The line outside the Ninth Circuit Court of Appeals started lining up hours before the hearing began. There is a lot of interest in this case evidenced by the fact the court agreed to allow cameras inside. Lawyers for government argued the facts of the lawsuit against AT&T shouldn't be discussed, which rankled the justices.

Judge Harry Pregerson, 9th Circuit Judge: "We just have to take the word of the members of the executive branch to tell us it's a state secret. Is this what you're saying, isn't it?"

Government Attorney: "No, your honor. What this court's precedents say, the court has to give the utmost deference to the assertion. The second part is&"

Pregerson: "What does utmost deference mean? We just bow to it?"

Lawyers, for the groups that claim their electronic emails have been spied on, say the phone company routed a dragnet of email traffic into government computers, without benefit of any court oversight or warrant. The phone companies' offices are located on Folsom Street.

Robert Fram, Plaintiff's Attorney: "It's very clear. There's a splitter cabinet, and that a cable goes in with peoples' Internet traffic from all over the Bay Area. And that causes a complete copy of the light signal that is provided then, right down to the sixth floor, where there's a room. And our allegation is only people with NSA clearances get into that room. And you don't get a clearance unless you're helping government."

Lawyers representing the phone company say the President has already denied the allegations of warrantless wire tapping. They say to discuss any part of what the phone company is doing would divulge state secrets.

Michael Kellogg, Attorney for AT&T: "The questions that the court would have to resolve, in order to determine that the plaintiffs' have standing, are the very questions as to which the government has invoked the state secrets privilege. In other words, they would have to show not only that there is such a dragnet program, but that AT&T participated in it, and that they're own individual communications were captured pursuant to that. But those precise questions, which are necessary to standing, are ones that the government, invoking the state secrets privilege, according to proper procedures, have said cannot be litigated."

The second case in front of the court is even more complicated.

This now defunct Islamic organization from Ashland, Oregon claims it was spied on without a warrant, and they have proof. By mistake, the government handed over a top secret document that actually confirms the spying. The document though, is still top secret and none of the lawyers can talk about it.

The judges have yet to make their decision, which could come at anytime.

The cameras inside the court today were manned by C-SPAN. In spite of the interest in this case, ABC7 was the only San Francisco television station to join their request.

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