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Challenges are heard on NSA surveillance

The Baltimore Sun

SAN FRANCISCO -- Three federal appeals court judges hearing challenges yesterday to the National Security Agency's surveillance programs appeared skeptical of and sometimes hostile to the Bush administration's central argument - that national security concerns require that the lawsuits be dismissed.

"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?" Judge Harry Pregerson asked a government lawyer. His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the Bush administration, responded that the courts have a role, though a limited one, in assessing the government's assertion of the so-called state secrets privilege, which can require dismissal of suits that could endanger national security.

He said judges must give executive branch determinations "utmost deference."

"Litigating this action could result in exceptionally grave harm to the national security of the United States," Garre said, referring to the assessment of intelligence officials.

The three judges on the 9th U.S. Circuit Court of Appeals were hearing arguments in two combined lawsuits challenging the highly classified surveillance programs, which the administration said were essential in combating international terrorism.

The appeals were the first to reach the court after dozens of lawsuits against the government and telecommunications companies over NSA surveillance were consolidated last year before Judge Vaughn R. Walker, chief judge of the federal trial court here.

The appeals concern two related questions that must be answered before the merits of the challenge can be considered: whether the plaintiffs can clearly establish that they have been injured by the programs, giving them standing to sue; and whether the state-secrets privilege requires dismissal of the suits on national security grounds.

Though the questions are preliminary, the impact of the appeals court's ruling could be broad. Should it rule for the government on either ground, the legality of the NSA programs might never be adjudicated.

The three judges - appointed by Democratic presidents - indicated that they were inclined to allow one or both cases to go forward for at least limited proceedings before Walker.

The two cases deal with different secret programs, but are broadly similar. One, a class action against AT&T;, focuses mainly on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. The lawyers in the AT&T; case call that program, which the government has not acknowledged, a "content dragnet."

The second case, brought by an Islamic charity and two of its lawyers against the government, concerns a targeted program disclosed by The New York Times in December 2005, which the Bush administration calls the Terrorist Surveillance Program. The program, which has been submitted to a secret court's supervision, bypassed court warrants to monitor international communications involving people in the United States.

Last month, a federal appeals court in Cincinnati dismissed a lawsuit brought in Detroit by the American Civil Liberties Union, saying that the plaintiffs there, including lawyers and journalists, could not prove they had been injured by the targeted NSA program.

Lawyers in the two cases argued yesterday said they had such proof. In the AT&T; case, the plaintiffs submitted a sworn statement from a former AT&T; technician who disclosed technical documents about the installation of monitoring equipment at an AT&T; Internet switching center in San Francisco.

Garre and the lawyer for AT&T;, Michael K. Kellogg, said the sworn statement was built on speculation and inferences. Robert D. Fram, a lawyer for the plaintiffs in the AT&T; case, said the statement contained more than enough direct evidence to allow the case to go forward.

Similarly, in the case brought by the al-Haramain Islamic Foundation charity, the plaintiffs say the government mistakenly provided them a document, since reclaimed, that proves they were subject to surveillance without court approval.

Yesterday, Thomas M. Bondy, a Justice Department lawyer, told the court that the document "remains totally classified."

In both cases, the government said the plaintiffs' evidence is insufficient to establish their ability to sue, adding that even litigating the matter will endanger national security.

"Whether plaintiffs were subjected to surveillance is a state secret," the Justice Department said in a brief in the Haramain case last month, "and information tending to confirm or deny that fact is privileged."

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