Judges Skeptical of State-Secrets Claim

By Karl Vick
Washington Post Staff Writer
Thursday, August 16, 2007

SAN FRANCISCO, Aug. 15 -- Lawyers for the Bush administration encountered a federal appeals court Wednesday that appeared deeply skeptical of a blanket claim that the government's surveillance efforts cannot be challenged in court because the litigation might reveal state secrets.

"The bottom line here is the government declares something is a state secret, that's the end of it. No cases. . . . The king can do no wrong," said Judge Harry Pregerson, one of three judges from the U.S. Court of Appeals for the 9th Circuit who grilled administration lawyers at length over whether a pair of lawsuits against the government should go forward.

Deputy Solicitor General Gregory G. Garre was forced to mount a public argument that almost nothing about the substance of the government's conduct could be talked about in court because doing so might expose either the methods used in gathering intelligence or gaps in those methods.

"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "

At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back.

The panel represents the highest court so far to consider conflicting claims about the legality of ambitious surveillance efforts secretly launched by the Bush administration in the wake of the Sept. 11, 2001, terrorist attacks. About 50 separate lawsuits charging that those efforts are illegal have been consolidated before the U.S. District Court in San Francisco.

The two that reached the 9th Circuit panel today were the first to go forward, and they landed before one of the country's more liberal appellate courts. Two of the jurists were appointed by President Bill Clinton, the third by President Jimmy Carter. Their skepticism toward the administration's line of reasoning was evident through much of the two-hour hearing.

Garre, who had been scheduled to speak for 20 minutes, was kept at the podium for twice that time fielding hardballs. But some of the sharpest queries appeared grounded in concerns -- such as the scope of judicial authority -- that may be shared by jurists across the political spectrum. "Well, who decides if something is a state secret or not?" Pregerson asked. "Are you saying the courts are to rubber-stamp the determination of the executive of what's a state secret? What's our job?"

Government attorneys labored to assure the judges that the administration appreciates their role, while arguing that national security concerns require judges to dismiss cases that might expose state secrets.

"Is it the government's position that when our country is engaged in a war that the power of the executive, when it comes to wiretapping, is unchecked?" Pregerson asked. No, Garre replied, but he cited an earlier federal ruling that required courts to give "utmost deference" to security concerns.

"Well, what does 'utmost deference' mean?" Pregerson asked. Before Garre could reply, Judge Michael Daly Hawkins asked: "It doesn't mean abdication, does it?"

The cases the administration asked the judges to dismiss predate legislation passed by Congress this month that gives the government broad power to monitor communications -- authority that the lawsuits say the Bush administration illegally assumed over the previous five to six years.

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