U.S. Defends Surveillance to 3 Skeptical Judges
By ADAM LIPTAK, NY TIMES, August 16, 2007

SAN FRANCISCO, Aug. 15 — Three federal appeals court judges hearing challenges to the National Security Agency’s surveillance programs appeared skeptical of and sometimes hostile to the Bush administration’s central argument Wednesday: that national security concerns require that the lawsuits be dismissed.

“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?” Judge Harry Pregerson asked a government lawyer. His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the administration, replied that the courts had a role, though a limited one, in assessing the government’s assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security. Judges, he said, must give executive branch determinations “utmost deference.”

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Mr. Garre said, referring to the assessment of intelligence officials.

The three judges, members of the United States Court of Appeals for the Ninth Circuit, were hearing arguments in two lawsuits challenging the highly classified surveillance programs, which the administration says are essential in fighting international terrorism. The appeals were the first to reach the court after dozens of suits against the government and telecommunications companies over N.S.A. surveillance were consolidated last year before the chief judge of the federal trial court here, Vaughn R. Walker.

The appeals concern two related questions that must be answered before the merits of the challenges can be considered: whether the plaintiffs can clearly establish that they have been injured by the programs, giving them standing to sue; and whether the state secrets privilege requires dismissal of the suits on national security grounds.

Though the questions are preliminary, the impact of the appeals court’s ruling may be quite broad. Should it rule for the government on either ground, the legality of the N.S.A. programs may never be adjudicated.

All three judges indicated that they were inclined to allow one or both cases to go forward for at least limited additional proceedings before Judge Walker.

The two cases deal with different secret programs, but are broadly similar. One, a class action against AT&T, focuses mainly on accusations that the company provided the N.S.A. its customers’ phone and Internet communications for a vast data-mining operation. The lawyers in the AT&T case call that program, which the government has not acknowledged, a “content dragnet.”

The second case, brought by an Islamic charity and two of its lawyers against the government, concerns a program disclosed by The New York Times in December 2005, which the administration calls the Terrorist Surveillance Program. The program, which has since been submitted to a secret court’s supervision, bypassed court warrants in monitoring international communications involving people in the United States.

Last month another federal appeals court, in Cincinnati, dismissed a suit brought in Detroit by the American Civil Liberties Union, saying the plaintiffs there, including lawyers and journalists, could not prove they had been injured by this latter program.

Lawyers in the two cases that were argued Wednesday say they have such proof. In the AT&T case, the plaintiffs submitted a sworn statement from a former technician for the company who disclosed technical documents about the installation of monitoring equipment at an AT&T Internet switching center in San Francisco.

Mr. Garre, representing the administration, and Michael K. Kellogg, a lawyer for AT&T, said the sworn statement was built on speculation and inferences. Robert D. Fram, a lawyer for the plaintiffs, said the statement provided more than enough direct evidence to allow the case to go forward.

Similarly, in the case brought by the charity, al-Haramain Islamic Foundation, the plaintiffs say the government mistakenly provided them a document, since reclaimed, that proves they were subject to surveillance without court approval.

On Wednesday, Thomas M. Bondy, a Justice Department lawyer, told the court that the document “to this day remains totally classified.”

In both cases, the government said the plaintiffs’ evidence was insufficient to establish standing to sue, adding that even litigating the matter would endanger national security. “Whether plaintiffs were subjected to surveillance is a state secret,” the Justice Department said in a recent brief in the Haramain case, “and information tending to confirm or deny that fact is privileged.”

One of the judges on the panel, M. Margaret McKeown, seemed to endorse a lower court finding that the wiretap program was no longer secret. “We know quite a lot” about the Terrorist Surveillance Program, said Judge McKeown, who, like the third judge on the panel, Michael Daly Hawkins, was appointed by President Bill Clinton.

Judge Pregerson, appointed by President Jimmy Carter, appeared irritated with the government’s arguments, and he became frustrated when Mr. Garre said he could not provide simple answers to questions about the scope of a recently amended 1978 law, the Foreign Intelligence Surveillance Act. Mr. Garre said it was a complicated law.

“Can’t be any more complicated than my phone bill,” Judge Pregerson said.

9th Circuit Appeals Court: Let NSA Lawsuit Proceed
By Declan McCullagh, Wednesday, August 15, 2007

The 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security by possibly revealing "state secrets."
A moment later Judge Michael Hawkins suggested that granting the request could "mean abdication" of our duties.

At the heart of both cases is the U.S. Department of Justice's argument that any lawsuit claiming illegal activity on behalf of AT&T and the National Security Agency--even if the eavesdropping is known to have taken place--cannot proceed because they could let enemies and terrorists know how the government's surveillance apparatus works.

It "could compromise the sources, methods and operational details of our intelligence gathering capabilities," Solicitor General Garre said.

In the first case, called Hepting v. AT&T, the Electronic Frontier Foundation and other attorneys had filed a class action lawsuit against AT&T saying it unlawfully opened its networks to the NSA. U.S. District Judge Vaughn Walker in San Francisco ruled last summer that it could proceed.

The second case, Al-Haramain Islamic Foundation v. President Bush, is unique: it involves a classified document that the U.S. Treasury Department accidentally turned over to an attorney for the foundation. The top-secret document showed, according to the group, "Al-Haramain and its attorneys had been subjected to warrantless surveillance in violation of federal law. They responded by filing another lawsuit in February 2006 alleging violations of the Foreign Intelligence Surveillance Act.

The Justice Department says the Al-Haramain case must be thrown out because it, too, could endanger state secrets. The foundation's attorneys must not even be allowed to refer to it, government attorney Thomas Bondy said Wednesday, because their "mental recollections of the documents are also out of the case."

While no decision was announced Wednesday, and a final ruling could take months to reach, a three-judge panel of the 9th Circuit pressed prosecutors to justify asking that the case be dismissed based on declarations submitted by senior Bush administration officials. (All three judges are Democratic appointees.)

"The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"

NSA Judge: 'I feel like I'm in Alice and Wonderland'
By Kevin Poulsen August 15, 2007 | 6:33:00 PMCategories: NSA

Spectators lined up outside the 9th Circuit Court of Appeals in San Francisco starting at noon to guarantee a seat at a much-anticipated legal showdown over the government's secret wiretapping program.

The hearing involves two cases: one aimed at AT&T for allegedly helping the government with a widespread datamining program allegedly involving domestic and international phone calls and internet use; the other a direct challenge to the government's admitted warrantless wiretapping of overseas phone calls.

Jon Eisenberg, an Oakland-based attorney, is arguing on behalf of a now-defunct Islamic charity Al-Haramain and its lawyers, who claim to have been accidentally given a Top Secret log of their own phone conversations, which they say proves the government illegally eavesdropped on them without warrants.

Assistant U.S. Attorney General Thomas Bondy will argue for the government in the Al-Haramain challenge, while Deputy Solicitor General Gregory Garre will handle the government's side in the AT&T case.

The Electronic Frontier Foundation, which filed the challenge to AT&T, is being represented by Robert Fram, a San Francisco-based attorney.

2:10pm PDT

The courtroom filled quickly with more than 20 attorneys in the courtroom well, and 80 spectators seated and standing. Another 40 filed into an overflow courtroom, including Mark Klein, the former AT&T engineer who provided internal company documents to the EFF. Those documents allegedly show that AT&T built a secret spying room for the NSA in its San Francisco internet switching center.

Garre, the Bush administration attorney, just opened oral arguments by telling the three-judge panel that it should dismiss outright the lawsuit against AT&T, and those challenging the constitutionality of the president's warrantless and domestic eavesdropping program developed.

"Litigating this action could result in exceptionally gave harm to national security in the United States," says Deputy Solicitor General Gregory Garr.

2:20pm PDT

Judge Harry Pregerson suggests the government is asking the courts to "rubber stamp" the government's claim that state secrets are at risk "Who decides whether something is a state secret or not? ... We have to take the word of the members of the executive branch that something is a state secret?"

Garre counters that the courts should give "utmost deference" to the Bush administration.

Judge Pregerson: "What does utmost deference mean? Bow to it?"

2:30pm PDT

All three judges are giving Garre skeptical questions about the power of the state secrets privilege. They're also getting stonewalled a bit.

"Was a warrant obtained in this case?" Judge Pregerson asks.

"That gets into matters that were protected by state secrets," Garre replies.

2:45pm PDT

Judge McKeown asks whether the government stands by President Bush's statements that purely-domestic communications, where both parties are in the United States, are not being monitored without warrants.

"Does the government stand behind that statement," McKeown asks.

Garre: "Yes, your honor."

But Garre says the government would not be willing to sign a sworn affidavit to that effect for the court record.

Pregerson, by his record, is the most liberal judge on the panel, and he clearly thinks the government is just looking for a blank check for their secret program. But the other two judges aren't thrilled either. They seem perplexed that the government can't swear under oath that the Bush Administration isn't warrantlessly spying on domestic phone calls.

3:00pm PDT

Government attorney Garre doesn't think much of the secret documents provided to EFF by whistle blower Mark Klein -- which outline a room that is capable of widespread investigation of internet packets from multiple ISPs and backbone providers.

Garre described the documents as showing the secret room "has a leaky air conditioner and some loose cables in the room."

Expect EFF's attorney to rebut that characterization in his upcoming arguments.

3:10pm PDT

AT&T attorney Michael Kellogg (right, entering the courthouse) has taken the podium, and, not surprisingly, insists the case has to be dismissed. He says AT&T customers have no actual proof or direct knowledge that their communications were forwarded to the government without warrants.

"The government has said that whatever AT&T is doing with the government is a state secret," Kellogg says. He adds, "As a consequence, no evidence can come in whether the individuals' communications were ever accepted or whether we played any role in it." (Back at Wired, THREAT LEVEL's head just exploded --klp)

3:20pm PDT

Robert Fram is up for EFF. He's outlining the allegations based on the Klein documents.

"There is a splitter cabinet on the 7th floor on 611 Folsom Street. He (Klein) knows, because it was his job to oversee the room. He installed the circuits." Fram adds that "the splitter cabinet sends the light signal on the seventh floor where the SG-3 study room is located."

Fram argues that the Foreign Intelligence Surveillance Act (FISA) allows people to challenge even the most secret electronic spying, by permitting courts to hear the government's evidence in chambers

He's also carefully trying to say that EFF doesn't want any more information on sources and methods of the NSA, arguing that the mere existence of the secret room is good enough under the law to prove the existence of surveillance, regardless of what the government does once it has the internet packets.

"We have completed the privacy violation on the handover of the internet traffic at the splitter into the secret room, which room has limited access to NSA-cleared employees," Fram says. "What is not part of our claim is what happens inside that room."

3:30pm PDT

Fram says Klein's allegations demonstrate there is an AT&T and NSA relationship.

"We have not only alleged it; we have proved it," Fram argues.

Judge M. Margaret McKeown isn't convinced.

"You haven't proved what the relation is between AT&T and the government," McKeown (left, file photo) counters.

"Maybe Klein is wrong and AT&T and the government can come in and say that room is available to all technicians. But they haven't done that," says Fram.

3:50pm PDT

The EFF's Fram's attempt to argue that the existence of the secret AT&T room is enough to prove dragnet internet surveillance doesn't seem totally convincing to Judge McKeown.

"There's a Las Vegas quality to your argument," McKeown tells Fram, alluding to the "What Happens in Vegas, Stays in Vegas" commercials.

Fram argues that Congress broadly defined surveillance in the 1978 FISA law, which was spurred by revelations in the 1970s of widespread government surveillance of American citizens.

"What Congress did is it established a protective perimeter for our privacy," Fram says. "Congress wanted to have some set of rights that could be clearly enforced."

Those rules, Fram argues, means that you were part of a mass dragnet surveillance if one of your e-mail went into the room on Folsom Street, even if the government wasn't targeting you specifically.

On rebuttal, government attorney Gregory Garre derides the EFF's case.

"Plaintiffs acknowledge that the room is central to their case and that they don't know what is going on in that room," says Garre. "Something else could be going on in that room. Just to pick one, it could be FISA court surveillance in that room."

Not that he's saying that there is FISA court surveillance conducted in the secret room. Just that there could be. Who knows? Presumably, Garre does. But he's not saying.

On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers.

4:00pm PDT

In the Al-Haramain Islamic Foundation case, Assistant U.S. Attorney General Thomas Bondy (right, entering the courthouse) also says the case should be tossed. "The state secrets privilege requires dismissal of this case."

Whether the foundation's lawyers were spied upon, which is the subject of the case, "Is itself a state secret," Bondy argues.

4:10pm PDT

Expanding on that theme, the government argues that the Al-Haramain case needs to be thrown out because the secret document that the government accidentally gave the foundation is so secret that it is outside of the case.

Bondy claims the plaintiff's memories of the document can't be allowed into the case because the only way to test them is against the "totally classified" document.

"Once the document is out of the case, which it has to be since it is privileged, the only way to test the veracity of their recollections is to compare it to the document," Bondy says.

The lower court allowed the case to go forward based on the Al-Haramain Foundation lawyers' memories of the document, but ruled that the document itself was not allowed into the case.

Judge Hawkins wonders if the document is really that secret?

"Every ampersand, every comma is Top Secret?," Hawkins asks.

"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," Bondy answers.

The government says the purported log of calls between one of the Islamic charity directors and two American lawyers is classified Top Secret and has the SCI level, meaning that it is "secure compartmented information." That designation usually applies to surveillance information.

4:25pm PDT

Judge McKeown: "I feel like I'm in Alice and Wonderland."

Eisenberg: "I feel like I'm in Alice in Wonderland, too."

4:30pm PDT

Al-Haramain lawyer Eisenberg argues that the government's rationale for dismissing the cases on state secrets grounds doesn't apply to his clients, since they already know they were surveilled from seeing the secret document.

McKeown asks whether the foundation's attorneys would have a case if the government hadn't inadvertently disclosed the call log.

"We wouldn't have known we were surveilled," Eisenberg replies. "Had they not made a mistake and revealed it to the victims... who would be out here to sue?"

4:40pm PDT

Oral arguments are adjourned, and people are filing out of the courtroom. But not before Bondy, for the government, gets the last word and neatly sums up the case for the three judges. Al-Haramain Foundation attorneys, he points out, "think or believe or claim they were surveilled.

"It's entirely possible that everything they think they know is entirely false," he says.

David Kravets' Analysis of the political meaning of today's NSA Hearing
Ryan Singel's Analysis: Some Secret Documents Are Too Secret Even for Critical Judges
View the NSA Appeals Court Hearing

Is Bush Administration Redefining New Spy Law?
By David Kravets August 16, 2007

Is the Bush administration interpreting the two-week-old Protect America Act of 2007 to allow warrantless eavesdropping on U.S. soil? Or does the government's key lawyer in a case challenging the Administration's secret spying programs not understand wiretapping law?

While citing national security concerns, Gregory Garre, a deputy solicitor general, was urging a San Francisco-based federal appeals court to dismiss lawsuits accusing the Bush administration of warrantless spying on Americans.

Along the way, when asked by the court to clarify what the current spying rules were, Garre told the court Wednesday that the Protect America Act allows foreigners to be monitored without warrants on U.S. soil.

During a back-and-forth with Judge Harry Pregerson, Garre said: "The recent amendments to FISA make clear that electronic surveillance does not include surveillance that is directed at foreign individuals."

If that's the administration's position on the new law, that would be an extraordinary expansion of the government's legal spying rights.

However, the new law says electronic surveillance of somebody "reasonably believed" to be outside the United States, to acquire "foreign intelligence," is no longer considered electronic surveillance, and hence no warrants are required from a secret U.S. court designed to issue such warrants.

After more courtroom discourse, Garre told Pregerson: "You're honor, again, I point you to the recent definition, which exempts from the definition of electronic surveillance, surveillance that is directed at individuals reasonably believed to be foreign individuals."

That's not what the new law says. Geography, not nationality, is the key to the new law. It says the National Security Agency doesn't need a warrant to spy if the target is reasonably believed to be outside the United States.

Nothing in the definition of electronic surveillance under section 101 (f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

A Democratic-controlled Congress authorized the act two weeks ago, acquiescing to Senate Minority Whip Trent Lott, who said "disaster could be on our doorstep" if lawmakers failed to act.

During a break in Wednesday's hearing, The Associated Press and Threat Level asked Garre whether he misspoke. Garre referred us to the Justice Department's public affairs office.

A Justice Department spokesman said that office was not immediately prepared to respond.

Perhaps whether Garre misspoke is a government secret.

Ço-written with Threat Level's Ryan Singel.

EFF's Class-Action Lawsuit Against AT&T for Collaboration with Illegal Domestic Spying Program
LINK

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans' communications. On July 20, 2006, a federal judge denied the government's and AT&T's motions to dismiss the case, allowing the lawsuit to go forward.

The EFF lawsuit arose from news reports in December 2005, which first revealed that the NSA has been intercepting Americans' phone calls and Internet communications without any court oversight and in violation of the privacy safeguards established by Congress and the U.S. Constitution. This surveillance program, purportedly authorized by the President at least as early as 2001, apparently intercepts and analyzes the phone and Internet communications of millions of ordinary Americans.

But the government did not act—and is not acting—alone. EFF's lawsuit alleges that AT&T has given the NSA unchecked backdoor access to its communications network and its record databases. On behalf of a nationwide class of AT&T customers, EFF is suing to stop this illegal conduct and hold AT&T responsible for violating the law and the fundamental freedoms of the American public.

AT&T moved to dismiss the case, basically arguing that it should be immune from suit because "whatever we did, the government told us to." The U.S. government also moved to dismiss the case, arguing that allowing the case to go on would necessarily reveal "state secrets" that would harm national security. But in July, U.S. District Judge Vaughn Walker issued a decision denying both motions.

As Judge Walker wrote when dismissing AT&T's immunity claims, "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal." Judge Walker also flatly rejected the government's secrecy argument: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

The case is now on appeal before the 9th Circuit.

Privacy group sues for surveillance records
By The Associated Press
10.06.06
WASHINGTON — A privacy-advocacy group is suing the U.S. government for records concerning electronic-surveillance tools such as one that appears to be a successor to the FBI's abandoned Carnivore program.

The Electronic Frontier Foundation says it is suing the Department of Justice because the FBI failed to respond in time to its Freedom of Information Act request for records on the DCS-3000 and Red Hook programs.

DCS-3000 is an interception system that the EFF said apparently evolved out of Carnivore, a system later renamed DCS-1000. The FBI developed Carnivore to read e-mails and other online communications among suspected criminals, terrorists and spies, but privacy groups and lawmakers complained it could collect much more than allowed by a warrant.

A Justice Department Inspector General report in March said the FBI had spent about $10 million on DCS-3000 to intercept communications over emerging digital technologies used by wireless carriers before next year's federal deadline for them to deploy their own wiretap capabilities.

The same report said the FBI spent more than $1.5 million to develop Red Hook, "a system to collect voice and data calls and then process and display the intercepted information" before those wiretap capabilities are in place.

The San Francisco-based EFF, which recently opened a Washington office with two attorneys lured from the Electronic Privacy Information Center, filed the lawsuit on Oct. 3 in the U.S. District Court for the District of Columbia.

"The lawsuit is to force the FBI to release information about this to the public," Marcia Hofmann, an EFF staff attorney, said Oct. 4. She added that the group would be exploring further legal action in the coming weeks.

The FOIA response deadline is usually 20 working days, unless an agency asks for more time, but the FBI did not do that in this case, Hofmann said.

The FBI declined comment, citing the pending lawsuit.

The FBI performed 13 Internet wiretaps in fiscal 2002 and 2003, but none used Carnivore, according to bureau oversight reports submitted to Congress and obtained last year under a FOIA request by the Washington-based Electronic Privacy Information Center.

The FBI also said then that the part of its budget containing information on the cost to produce Carnivore was classified, but outside experts estimated it to be between $6 million and $15 million.