Yesterday, a federal appeals court “appeared skeptical of and sometimes hostile” towards the Bush administration’s argument that legal challenges to the NSA’s surveillance programs should be dismissed on “state secrets” and national security grounds, with one judge saying the government’s argument was tantamount to “the king can do no wrong.”
“The bottom line” of the administration’s argument “is the government declares something is a state secret, that’s the end of it. No cases,” said Judge Judge Harry Pregerson. “The king can do no wrong.”
1) A program where AT&T allegedly provides “the NSA its customers’ phone and Internet communications for a vast data-mining operation,” in a program that “the government has not acknowledged,” but plaintiff’s lawyers call a “content dragnet.”
2) A program disclosed by The New York Times in December 2005, which the administration calls the Terrorist Surveillance Program,” where the NSA bypasses “court warrants in monitoring international communications involving people in the United States.”
Federal lawyers argued that “almost nothing about the substance of the government’s conduct could be talked about in court,” but that the judges must give executive branch claims of state secrets the “utmost deference.”
The three judges on the court were unsatisfied with the argument, offering various stinging comments and rebuttals:
- “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?” asked Pregerson.
- “This seems to put us in the ‘trust us’ category. ‘We don’t do it. Trust us. And don’t ask us about it,’” said Judge M. Margaret McKeown.
- “Every ampersand, every comma is top-secret?” queried Judge Michael Daly Hawkins about a withheld document.
- “”Are you saying the courts are to rubber-stamp the determination of the executive of what’s a state secret? What’s our job?” asked Pregerson.
- “I feel like I’m in Alice and Wonderland,” observed McKeown.
When Deputy Solicitor General Greg Garre argued that “other avenues” than the court system were the proper forum for complaints about government surveillance, Pregerson shot back: “What is that? Impeachment?”
Wired liveblogged the hearing here.