NSA Judge: 'I feel like I'm in Alice and Wonderland'
By Kevin Poulsen EmailAugust 15, 2007 | 6:33:00 PMCategories: NSA
Ryan Singel and David Kravets are blogging the U.S. 9th Circuit hearing on the NSA's spying, and AT&T's alleged complicity, reporting live from the San Francisco courthouse. Hit 'refresh' in your browser and scroll to the bottom for updates.
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.Jon_eisenberg
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, (right) 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.
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.
Judge Harry Pregerson (left, in file photo) 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?"
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.
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.
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."
KelloggExpect EFF's attorney to rebut that characterization in his upcoming arguments.
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)
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."
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.
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.
Bondy 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.
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.
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.
Hawkins_michael_daly 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 (left, file photo) 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 "secureCheshire compartmented information." That designation usually applies to surveillance information.
Judge McKeown: "I feel like I'm in Alice and Wonderland."
Eisenberg: "I feel like I'm in Alice in Wonderland, too."
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?"
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
Audio of the NSA Appeals Court Hearing
View the NSA Appeals Court Hearing
(Courthouse photos: Ryan Singel)