Judges Skeptical of State-Secrets Claim

One suit, Hepting v. AT&T, is a class action that grew out of allegations by retired AT&T engineer Mark Klein that the company had cooperated with the National Security Agency to install equipment that funneled Internet traffic to the surveillance agency. A "secret room" described in court filings by Klein was located in an office building on Folsom Street, seven blocks from the courthouse.

The plaintiffs, led by privacy groups, say that arrangement violated the Foreign Intelligence Surveillance Act, which requires a warrant for electronic surveillance conducted within the United States to be issued by a special court.

"Did you go to the FISA court on this case?" Pregerson asked. "Again, your honor, that gets into state secrets," Garre replied.

McKeown repeatedly referred to a public statement by President Bush that the government does no domestic wiretapping without first obtaining a warrant, and asked whether administration officials would provide that assurance under oath. Hawkins also requested the assurance, arguing that "no court in the land" would accept a public statement as binding.

"If there were in fact widespread surveillance of American citizens, there would be no [legal] remedy, yes or no?" McKeown asked Garre. He responded by reiterating that litigation would inevitably lead to exposing methods that must be kept secret to be effective.

A second government attorney said more about the importance of murkiness in discussions of intelligence during the court's consideration of the other case, Al-Haramain Islamic Foundation v. George W. Bush. Investigators suspected the now-defunct Oregon foundation had links to al-Qaeda, and in 2004, they accidentally released -- and then recaptured -- a top-secret document confirming that the foundation's lawyers were under surveillance.

Thomas M. Bondy, a Justice Department lawyer, acknowledged the mistake but pointedly refused to confirm the document's authenticity. "You don't confirm or deny if someone is the subject to foreign surveillance," Bondy said. "The whole point is no one knows, or at least the United States government maximizes uncertainty over it."

Otherwise, he added, "it will make certain things certain that are not certain."

Late in the proceedings, McKeown complained of feeling "like I'm Alice in Wonderland." "I feel like Alice in Wonderland, too," said Jon B. Eisenberg, an attorney for the plaintiffs in the al-Haramain case. "I filed a sealed file in this case, arguing what I think is in the document. I cannot talk about that file today." The sealed portion of the case, which involves classified documents, was to be examined by the judges privately.