Links for previous reports of Al-Haramain Islamic Foundation vs George W. Bush:
"Gitmo Lawyers Challenge FISA Bill in Court," by Vyan
"The Document: Plaintiff in NSA Suit Has Proof of Warrantless Eavesdropping," by litigatormom
"Federal Judge Refuses to Dismiss Spying Case"
"Secret call log at heart of wiretap challenge"
"Blatant Criminal Behavior by the Bush Administration"
I'll add details of what I saw and heard in an update coming up.
Update 1: Government in Hepting vs AT&T
The courtroom was packed, and I was told that there 60 people in the overflow room. There were two video cameras in the room, and I heard they were CSPAN. A Washington Post reporter entered the room in front of me. About 20 people, most in black suits, took up the chairs in the litigants’ area.
Now I switch to present tense. The person who I am told is Hepting is dressed in business casual, no jacket. About two-thirds of the people in the public seating appear to be younger, 20s to 30s. This is the first time I have been in a federal courthouse. The room is very ornate.
At 1:57, Judges Hawkins, Pregerson and McKeown enter and sit down to preside. In the first case, Hepting vs AT&T, the government attorney Garre goes first. (I have attempted to capture quotes, but take them for their meaning, not transcription accuracy.)
The judges asked plenty of questions of Garre.
Hawkins: Is the state secret doctrine common law doctrine? Wasn’t FISA enacted after hearings about abuses of telecommunications? Doesn’t the FISA law have a provision for in camera use of evidence?
McKeown: Does the state secrets doctrine supplant the doctrine of the FISA law? The plaintiffs claim there was a widespread program for domestic surveillance – wouldn’t the plaintiff, like everyone else, be subject to that surveillance?
McKeown repeatedly mentions Bush’s statement that the government doesn’t listen to domestic phone calls without court approval. Garre said that the government stands by that. Garre repeated several times that the government cannot be asked to prove a negative.
McKeown asks if three topics are part of this case: 1. dragnet of surveillance, 2. communications records, and 3. the TSP. Garre said the first two are but not the TSP.
To a lot of these questions Garre cites cases as precedent. It’s hard to hear everything he is saying. Garre emphasized that litigation must end where state secrets begin.
Pregerson asks, who decides what is a state secret? Garre says ultimately the courts. Pregerson: So are the courts to rubber stamp the decision that the executive makes? Garre says no. Pregerson: Do we just have to take the word of the executive? Garre: No but the court must give that utmost deference. Pregerson: You mean abdication? Garre: No. Pregerson: How can I do that? Garre: Look at the public and private declarations and make an assessment.
Hawkins: Judge Walker thought the case could go forward. Garre: Walker was wrong.
Hawkins: The plaintiffs say that AT&T has provided information about subscribers to the government without a warrant. Simply providing the information without a warrant is enough. Garre: That is incorrect. Hawkins: Didn’t they prove their case? Garre: No, to do so the court would have to get into the details of state secrets.
McKeown: I can appreciate that in regard to communications records. But with respect to widespread government surveillance, why could you not have basic discovery on that point? Is the government saying, "Trust us?"
Pregerson interjects that what bothers him is the government’s position that when in a time of war, the power of the executive is unchecked. Garre says it is not unchecked. Pregerson: what is the check? Garre: the court is the check. Pregerson: What is that? Impeachment?
Garre cites the Tenet SCOTUS case, and mentions that the AT&T lawyer needs some time to present. Pregerson: "We can help AT&T out. Just charge them for overtime." (Crowd laughs) They are blowing way past the 30 minute time allowance.
McKeown: would an official sign an affidavit saying what Bush said – that the government does not do warrantless surveillance? Pregerson (to Garre): Will you do it?
Garre says that going beyond a mere denial would involve getting into operational details and methods. Garre talking, is trying to avoid bluntly saying the court can’t go here without saying the court can’t go here. Pregerson: We know the FISA court is working hard.
The judges ask about foreign surveillance, and it briefly gets bogged down.
Pregerson (to Garre): You’re the expert; some of this confuses me. You’re not helping me. Are foreign-to-foreign communications covered by FISA?
Garre: definition is very complicated
Pregerson: can’t be any more complicated than my phone bill.
Garre goes on to say the plaintiff has not established standing.
Pregerson: Once the executive says an activity is a state secret, that’s the end of it? The king can do no wrong?
Garre: No, the courts have a say. But they would have to dismiss for the greater public good.
McKeown: Even if a president did not deny domestic surveillance, would the state secret doctrine prevent a challenge to go forward?
Garre: The court could look at the in camera submittals and would have to dismiss the case.
Hawkins: Even if the in camera submittal is a denial affidavit that the dragnet does not happen?
Garre: Yes.
AT&T lawyer Kellogg is up. He argues why the plaintiffs do not have standing.
Kellogg: The government has said that whatever AT&T does with the government is a state secret. Therefore none of that information can come into this case. ... Even gaps in intelligence can be a state secret. What the government is NOT doing is a state secret.
Subject of accepting the president's statement comes up. Hawkins: No court in the land would be satisfied if the president of the US or the president of AT&T or the custodian of the room on Folsom Street made any statement if it were not a sworn affidavit.
The defense has finished at 2:55 p.m.
Update 2: Plaintiff in Hepting vs AT&T
Robert Fram is the plaintiff’s lawyer. He says the case should not be dismissed for two simple reasons:
- Statute – Congress established private rights of action when AT&T has a surveillance relationship with the NSA. (Cites section 1806f).
He argues convincingly that the evidence is not just hearsay, as the government contends. He directs the court’s attention to the many declaration made earlier to the court, especially regarding details of what happens on the seventh and sixth floors of 611 Folsom St. in San Francisco. He delineates clearly what section 1806f says.
- Fram says the definition of an "aggrieved person" is broad – someone who is merely subject to electronic surveillance. It does not say "established that they are subject" or "notified that they are subject." Nothing that says you have to prove surveillance in order to bring a claim. The gist of the claim is in the improper giving of the information – its acquisition by a device without consent. There need not be reference to a human being reading it or what happens in the SG3 room (at 611 Folsom St.). What happens inside the room does not matter for this claim.
Fram is good. It appears he has a complete handle on the FISA law. He says the court must look carefully at the exact words of the government declarations.
Fram: What we are claiming is narrow. ... Our point is that acquisition of communication by a device without consent is complete when it is captured at the splitter cabinet on the 7th floor of 611 Folsom St and sent to the 6th floor to the SG3 room without legal authorization. The violation is complete at the splitter cabinet.
Fram then addresses stuff from the previously cited Tenet SCOTUS case. There is a recent DC Circuit case decided in July that is under seal, and it provides guidance here. The court remanded the case and had the lower court segregate secret and non-secret evidence.
Fram: At the end of the day it doesn’t make sense to dismiss this case when there is plenty of credible evidence, AT&T has admitted that evidence exists, and the government has not sought to deny any of it. The counter argument in dissent in the sealed case was similar to the defense argument here. ... You absolutely do NOT need to know that you are a target. You can still press a claim. Congress intended to allow claims like this to go forward while still protecting national security. Congress provided this right under color (?) of law, provided for certification, provided for secrecy of certification. Congress anticipated this and set it up so a claim could go forward.
Garre then states a list of quick rebuttal points. In one of them he states, "The need to keep state secret information is fundamentally important." I felt like shouting out, "So are our Fourth Amendment rights!"
Recess at 3:30 p.m.
Update 3: Government in Al-Haramain Islamic Foundation vs George W. Bush
3:43 p.m. Thomas Bondy is the lawyer for the government in Al-Haramain Islamic Foundation vs George W. Bush.
THE DOCUMENT: The "document" is a top secret document that the government accidentally gave to the plaintiffs, which plaintiffs say proves that they were wiretapped. It was required that all copies be retuned to the government, which plaintiffs have sworn they have done. However, the document is flown back and forth from Washington when it is needed to be used in secret in this case. A previous judge ruled plaintiffs could submit sworn statements of what they remembered from the document as evidence.
Bondy: The crux of the matter is the same as in the Hepting case. It is a state secret whether the plaintiff was ever surveilled in the first place. The document is totally classified Top Secret. It is "SCI" and subject to handling constraints. Declassification is not warranted.
McKeown: If we determine that the evidence is a derivative of the document itself, and the plaintiffs have other information to rely on, could the case go forward? (I did not get Bondy’s answer.)
Hawkins: How did the government find out of the inadvertent disclosure?
Bondy: Don’t know.
Hawkins asks it a different way. Bondy doesn’t know.
Hawkins: Is every single word and letter and period and ampersand and comma in the document a state secret?
Bondy: Yes. It can’t be meaningfully described without compromising state secret information. The district court found that it was (1) fully classified and (2) fully privileged as SCI. Therefore, it does not matter what the plaintiff knows because you can’t test the veracity because the document is privileged.
McKeown asks if the meaning of SCI was classified. Bondy: It stands for Sensitive Compartmented Information.
Bondy: The district court erred that it could work around this by using in camera proceedings. The state secret privilege covers what this case is all about. The court must dismiss. The district court cannot hold a secret trial.
Bondy: Not saying that the courts have no role. However, the document is completely non-segregable and non-redactible. Whether or not you are subject to surveillance under any program is a state secret.
Pregerson: It seems a pretty important thing in this business is to keep them guessing.
Bondy: Absolutely.
Bondy requests a dismissal of the case.
Update 4: Plaintiff in Al-Haramain Islamic Foundation vs George W. Bush
4:06 p.m. John Eisenberg is the lawyer for the plaintiffs.
Eisenberg: The government disclosed evidence of surveillance to the victims of the surveillance. The victims of this surveillance know they were surveilled. It does not matter how they were surveilled. It matter that they were surveilled.
Hawkins: Assume you don’t have the document to rely on to go forward.
Eisenberg: Government conceded they were conducting a program of warrantless surveillance during that time (March-April 2004). "Signals intelligence" is what they called it. Signals intelligence is derived from electronic surveillance.
Hawkins: Is the time frame derived from the document?
Eisenberg: Yes.
Some confusion ensues because the question was to assume you don’t have the document.
McKeown asks about the Reynolds case, which the defense had cited. Would it jeopardize your position? She asks if it flies in the face of what Eisenberg asserted.
Eisenberg says that this case has critical differences from Reynolds in terms of the need for the document, the need for evidence and the availability of evidence.
McKeown asks what if a redacted document only contained a few letters and punctuation marks.
Eisenberg: The redacted document would not need to contain his clients’ names. All that is necessary is to know that they were surveilled.
McKeown: Are the sealed documents derived from the classified document?
Eisenberg: Yes. The question is: does the document put national security at risk? (insert Update 5 here)
Hawkins: Is it essential that any surveillance of your clients was done without a court order?
Eisenberg: Yes. The government could avail itself of the defense provided by Congress in section 1809b. Congress said in the law that the fact that the government had a warrant is a sufficient defense. The government has not presented evidence that they have a warrant.
...
Eisenberg: The question is, "Does the president have the authority to defy an act of Congress to conduct warrantless surveillance?"
...
Eisenberg: The standard for showing standing is preponderance of the evidence.
Hawkins and McKeown ask questions about the difference between state secret privilege and attorney-client privilege.
Eisenberg appears to get in a bit of a twist over wording of his answer, and judges seem a bit confused. They ask questions to clear it up.
Eisenberg: The difference is that if attorney-client privilege is accidentally abrogated, there is a remedy (you can’t use it as evidence). Here there is no remedy.
Eisenberg is done. Bondy gets up.
Bondy: Number 1 – When the plaintiffs say they know, what they mean is that they think they know, but they don’t know. Number 2 – It is clear that the world doesn’t know either.
McKeown: The world knows what they think they know.
Bondy: That’s different from what they know.
Pregerson says that once he had a case as a district judge where a police chief came in to his quarters to show him a folder. He looked through it and it really had nothing. The police chief said, "What’s important is not what we know; it’s what they think we know." So that’s what you’re arguing here.
Bondy: "What I am arguing is ...." (He did not take that bait.)
With that the hearing adjourned at 4:33 p.m.
A person next to me pointed out that the government was giving itself wiggle room by not distinguishing the difference between "surveillance" and "interception" of communications.
So to me, the judges in both cases seemed to be skeptical of the government arguments. But given the nature of precedents and legal reasoning (I’m not an attorney), this seems it will be a tough one for the judges.
Any attorneys out there want to weigh in?
Update 5:
I skipped over an important point that Eisenberg made. He responded to National Intelligence Director John Negroponte’s previous declaration in this case. Negroponte’s submittal said that it is necessary to maintain the state secret privilege (1) to keep those who are under surveillance from altering their behavior, and (2) to protect the methods and operations that the government uses to collect intelligence.
As to point (1), Eisenberg argued that it no longer applies because his clients now know that they were under surveillance from seeing the document. It is no longer a secret. As to point (2), Eisenberg and his clients agree with it. There is no need for his clients to know the methods and operations that the government uses.
Impressive.
Update 6: My daily alert email from C-SPAN of upcoming programs shows that these two hearings will be televised on C-SPAN2 Thursday night (8/16) at 8:00 p.m. ET.
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