Three Federal Judges hear Arguments against the N.S.A. Surveillance Programs

Dozens of lawsuits against the National Security Agency (NSA) and their surveillance programs have been "consolidated" into two main lawsuits in the San Francisco federal courts according to the Washington Post.  Dan Eggen wrote in the Washington Post this past week that these "confrontations come just days after the Democratic controlled Congress acceded to the demands of the Bush administration for expanded NSA authority to conduct spying efforts on U.S. soil, effectively many of the practices at issue in San Francisco."  The New York Times described the scene on August 15th in the San Francisco ninth circuit federal court as three judges heard both sides of the lawsuits.  The article indicated that the judges all seemed skeptical of the arguments by the lawyers for the government.  Judge Harry Pregerson asked what the government's position was on the argument that in times of war the government was essentially allowed to engage in wiretapping completely unchecked by the courts.  The deputy solicitor general, Gregory G. Garre, representing the Bush administration responded "the courts had a role, though a limited one, in assessing the government's assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security...and judges must give the executive branch determinations "utmost deference."  The first suit, detailed the New York Times article, involved a class action suit against the telecommunications company AT&T.  The suit, relying on the statement of a previous technician, claims AT&T allowed the N.S.A. to monitor their customer's phone and internet communications without the customer's knowledge.  The second suit is by the al-Haramain Islamic Foundation, an Islamic charity, claims they have documentation they mistakenly received from the government that shows they have been under watch by the government without the proper court approval.  The lawyer for the charity says this document has since been re-claimed by the government and deemed "totally classified." 

The New York Times article also detailed that both suits were facing two main challenges before they could continue to be heard.  First, both parties have to establish that they have standing to sue the NSA by showing that they have been personally injured by the actions.  The government says both parties will have trouble establishing standing because the evidence they have is speculation at best.  Next, the government argues that even if the plaintiffs could establish standing the courts still have to determine if allowing the suits to continue would be a danger to national security as the NSA and administration claims because they would involve "state secrets."  Adam Liptak's article for the New York Times described the judges’ willingness to at least further investigate the legal claims as being "inclined to allow one or both cases to go forward for at least limited additional proceedings before Judge Walker in San Francisco."  The importance of the decisions by the three judges was stressed in the article noting "if the courts rule for the government on either of the questions then "the legality of the N.S.A. programs may never be adjudicated."

To see more sources please see:

Adam Liptak, "U.S. Defends Surveillance to 3 Skeptical Judges"  NY Times:  http://www.nytimes.com/2007/08/16/washington/16nsa.html?ex=1187928000&en=bf16e57dc232624e&ei=5070&emc=eta1
, August 16, 2007

Dan Eggan, "Lawsuits may Illuminate Methods of Spy Program", Washington Post: 

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/13/AR2007081301113.html?sub=AR , August 14, 2007

 

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/11/AR2007081101349.html