Thanks to fellow live bloggers: Ryan Singel and David Kravets for their words and images.
threat level rising

Based on the judges question, an apparent victory may be at hand……..

The hearing involves two cases: one aimed at AT&T for allegedly helping the government with a widespread data-mining program allegedly involving domestic and international phone calls and internet use; the other a direct challenge to the government’s admitted warrant-less wiretapping of overseas phone calls.

In questioning of the governmental witness, this exchange occurred.

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?”

Fifteen minutes later, this exchange occurs.

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.

Blogger’s opinion: 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 attorney can’t swear under oath that the Bush Administration isn’t warrant-lessly spying on domestic phone calls.

Proceed to the second case:

Whether the foundation’s lawyers were spied upon, which is the subject of the case, “Is itself a state secret,” Bondy argues. 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.

The government claims that 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.

This leads to this exchange :

Judge McKeown on the TOP SECRET/TOTALLY document: “I feel like I’m in Alice and Wonderland.”

Eisenberg: “I feel like I’m in Alice in Wonderland, too.”

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.

Judge Margaret McKeown and Judge Hawkins seem unconvinced that the Al-Haramain case can continue without relying on a top-secret document that can’t be used in court.

Eisenberg also offered that the government could have the case dismissed simply by proving the court that they got a warrant.

But the panel seemed unpersuaded that the document can be used at all and generally seemed to be sympathetic to the government’s position.

Bondy, the government’s attorney, finished by reiterating that giving out any information on the alleged surveillance would help the enemy: “We just cannot confirm or deny whether they were surveilled.”

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.

The Federal Governments Position in Defense of Secret Surveillance