Ninth Circuit Judges Question Need for Government Secrecy

The public overflowed the courtroom and late-comers filed into an adjoining video room, members of the press hovered around the courthouse, and oral argument lasted an hour and forty five minutes- that was the scene yesterday afternoon as the Ninth Circuit Court of Appeals heard the government's appeal in Hepting v. AT&T.

Hepting is one of several cases, including two filed by the California ACLU affiliates and one by the ACLU of Illinois, alleging that telecom companies assisted the NSA in illegally spying on the American people. For the purposes of judicial efficiency, all similar cases from around the country were transferred from their original states and assigned to Judge Vaughn Walker in the Northern District of California (district where the Hepting case was originally filed).

Prior to the consolidation of the cases, the government had already filed a motion to dismiss the Hepting case on the basis that the spying program cannot be challenged in court without violating the "state-secrets" privilege and exposing sensitive information. Walker rejected this argument and ruled that the case could continue. The government promptly appealed his decision to the Ninth Circuit.

The outcome of today's hearing will determine not only whether the Hepting case will go forward, but it will also impact all of the NSA cases, including the ACLU cases that are now consolidated before Judge Walker.

Today's Ninth Circuit panel, consisting of Circuit Court Judges Harry Pregerson, Michael Hawkins, and Margaret McKeown, questioned the government and AT&T attorney extensively during oral argument. The probe focused on two major themes: (1) the role of the judiciary in determining what is a state secret; and (2) what is a state secret.

The government contended that while FISA regulates wiretapping and admitted that the law was enacted as a response to intelligence abuses in the 1960s and 1970s, it still asserted that state secrets should stop litigation such as this that seeks to expose illegal violations of FISA. The government stated several times that "FISA is not a FOIA provision" - meaning that lawsuits to enforce the FISA law should not be allowed to reveal information to the public that otherwise would not be available and that the government claims is a state secret.

Judge Pregerson expressed considerable concern that there was no check on the government's actions and that the judiciary was being asked to simply "rubber stamp" the determination of the Executive Branch that certain activities or facts were state secrets and an issue as a whole was not justiciable. He continued later in the argument by asking, so "once the Executive declares that a certain activity is a state secret, then it is over? The King can do no wrong?" Judge Pregerson did not appear convinced with the government's response that there is a check because the judiciary is in the position to review affidavits of the Executive Branch claiming the existence of a state secret.

Judge Hawkins also probed the government about state secrets, noting that Judge Walker had already reviewed all of the information and determined that state secrets did not preclude the case from continuing.

Judge McKeown was particularly interested in determining what constituted a state secret and peppered the attorneys with hypotheticals. For example, if the President has already claimed that American citizens are not being spied upon without a warrant, then how could a denial by AT&T that it has disclosed any information to the NSA about American citizens be a state secret?

A particularly humorous moment in the argument came when Judge Pregerson asked the government attorney to answer some questions about electronic surveillance law. The government attorney said that the law was too complicated to answer in a simple manner. Judge Pregerson responded, "it can't be any more complicated than my phone bill."

One potentially troubling aspect of today's hearing was the distinction made by Judge McKeown between the claims in the Hepting case regarding the disclosure of telecommunications content and communications records to the NSA. Judge McKeown seemed to intimate that the state secrets privilege concerned her more in relation to the communications records portion. The government also dedicated a portion of its rebuttal time to asking the court at a minimum to reverse Walker's decision on the communications records and dismiss that portion of the case. Several of the consolidated cases, including that filed by the ACLU of California affiliates, focus on the disclosure of millions of telephone calling records to the NSA, and could be adversely affected if the Ninth Circuit was to dismiss the records portion of the Hepting case.

The Ninth Circuit did not rule yesterday. The decision will be released at a later date. For more coverage, check out the New York Times, Washington Post, and Wired.