-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: August 16, 2007 5:13:15 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Kafka Meets Orwell in the Courtroom
NSA Judge: 'I feel like I'm in Alice and Wonderland'
By Kevin Poulsen
Wired, August 15, 2007 | 6:33:00 PM
http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html
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.
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 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 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 also says the case should be tossed. "The
state secrets privilege requires dismissal of this case."
The allegation --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 (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 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
Audio of the NSA Appeals Court Hearing
(Courthouse photos: Ryan Singel)
Get a sneak peek of the all-new AOL.com.
www.ctrl.org
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