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.

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.

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