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If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see? - Alice in Wonderland
I have to confess, the oral arguments in the Ninth Circuit Court of Appeals in San Francisco yesterday in a courtroom that poured into two overflow areas, were, in all their strangeness, at times difficult to follow, even for a practicing lawyer.
The magnificent marble hallways ideally would invite an equally sublime level of discourse, but the sad, tortured logic of the Cheney administration swirled again through the hallowed chambers of the judicial branch, spinning nowhere. The court confronted two cases brought against the administration for its massive, supra-legal domestic surveillance program, the one that may, or may not, be spying on us, and that may, or may not, even exist.
To acknowledge its mere existence - though the President may, or may not, have lied in acknowledging its existence, to throw critics and assorted other troublemakers off the scent - the government argued yesterday, in both cases, would be itself a violation of what is known as the "state secrets" privilege, and the attorneys for the government in both cases argued strenuously that the privilege is for all intents and purposes an absolute bar to litigation about those very programs - er - alleged programs.
The audacious circularity of the arguments by the executive branch brought out the sardonic wit of the judges, particularly Harry Pregerson, who repeatedly probed the government's attorneys about what oversight role, if any, would be left for the judicial branch. Pregerson noted almost wistfully, about 3,000 warrant requests that made it to the official court for surveillance activities, FISA, in 2005 and only one of those was denied, and that only in part. As Judge Margaret McKeown observed on more than one occasion, the government's argument boiled down to "trust us".
"The bottom line is, that once the executive declares that it's a state secret, that's the end of it - the king can do no wrong," Pregerson said.
Garre tried repeatedly to claim that the judicial branch should extend to the executive branch the "utmost deference" when confronted with government claims of state secrets. "Utmost deference. What does that mean? Just bow to it?" Judge Pregerson then asked Garre point blank if judges would be nothing more than a rubber stamp for executive branch state secret privilege claims.
Sentence first - verdict afterwards
The first oral arguments concerned the class action lawsuit, Hepting v. AT&T, filed by the Electronic Frontier Foundation (EFF) against the telecommunications giant for participating in the controversial secret surveillance program with the NSA. Room 641A at 611 Folsom St. in San Francisco, according to the EFF, functions as a massive data mining operation by the NSA, where splitters divert fiber optic signals into a secure NSA listening room. Although the administration has claimed that the surveillance program only targets foreign subjects, the room, if it is as alleged, is clearly capable of much, much more.
The argument surrounds a foundational element of the law - namely, whether plaintiffs under alleged surveillance even have what is called "standing" to sue for that very surveillance. Standing requires a prima facie showing of harm to an individual plaintiff. The problem, of course, is that the surveillance is secret, and the instant that a plaintiff alleges he or she has been illegally surveilled, the executive branch claims the "state secrets" privilege. This is a classic Catch-22, and it has so far made it impossible for Americans to challenge clandestine government action against its own citizens.
