Appeal May Revive Warrantless Wiretap Suits

SEATTLE (CN) - The government urged the 9th Circuit to affirm dismissal of dozens of lawsuits that claim the National Security Agency and telecommunications companies illegally intercepted U.S. citizens' phone calls and emails.

U.S. District Judge Vaughn Walker in San Francisco had tossed lawsuits against the NSA for lack of standing and dismissed claims against the telephone companies because a 2008 federal law gave retroactive immunity to telecommunication firms that helped in the dragnet surveillance.

An attorney for the Justice Department sent a letter to the 3-judge panel before the oral arguments, cautioning them not to refer to classified information.

"We are writing to remind the court that the record in this case includes classified information subject to the state secrets privilege," attorney H. Thomas Byron III wrote. "We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information. Because the public, redacted brief for the government appellees addresses the key legal arguments on appeal, we believe it will not be necessary for the court or government counsel to refer explicitly to any classified information during the oral argument."

Plaintiffs' lawyers objected to use of the classified brief, which they were not allowed to see, but Judges Michael Hawkins and M. Margaret McKeown agreed to accept it, with Judge Harry Pregerson dissenting.

Kevin Bankston, with the Electronic Frontier Foundation, represented plaintiffs suing the NSA. He argued that his clients suffered "concrete injuries" from having their communications intercepted and that the district court wrongly found those injuries represented a "generalized grievance." He said the lower court was mistaken in "basically concluding that so long as everyone is being surveilled, no one has standing to sue."

Bankston cited the U.S. Supreme Court ruling in Massachusetts v EPA.

"To deny standing to persons who are in fact injured simply because many others are also injured would mean that the most injurious and widespread government actions could be questioned by nobody. They could not accept that conclusion, nor should this panel."

Pregerson, who participated in the hearing by live video feed from Los Angeles, began whispering as Bankston sat down. When McKeown cautioned that the court was listening in, Pregerson joked, "I'm used to electronic surveillance. I live with it every day."

Representing the government, Thomas Byron said there is "simply no way" for the cases to proceed without risking "exceptionally grave damage to national security." He said the "nationwide policy of alleged surveillance" should be resolved by Congress, not in Federal Court.

Ilann Maazel, co-counsel for plaintiffs, responded that "Congress spoke in 1978," by enacting the Foreign Intelligence Surveillance Act, signed by President Jimmy Carter. "They responded to illegal conduct by the executive. They said we need to have not only criminal penalties but a private cause of action," Maazel said.

He called the warrantless surveillance an "extraordinary dragnet" and said that "all Americans' communications" are being monitored.

"There are new revelations coming from senior people of the NSA almost on a monthly basis," Maazel said.

Judge McKeown said she was concerned that the government's argument "infuses national security concerns into the standing doctrine" and could prevent the plaintiffs "from ever pursuing a claim."

"I don't know what the precedent would be for such a position that the government is taking," McKeown said.

Pregerson said the government was asking the judiciary to "abdicate."

The panel then heard from plaintiffs suing AT&T, Verizon and other telephone companies that participated in the government's surveillance. Cindy Cohn, with the Electronic Frontier Foundation, said the law that granted immunity to the telecoms is unconstitutional.

"The result is that the executive is allowed to effectively grant civil pardons to select telecommunications carriers facilitating the massive dragnet surveillance of their own customers," Cohn said.

Co-counsel Bruce Afran added: "No precedent allows Congress to give the attorney general authority to declare lawful today what was unlawful the week before."

Michael Kellogg, representing the telecoms, said the carriers would be subjected to "ruinous liability," if not for the immunity provision.

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