SAN FRANCISCO -- Justice Department attorneys attempted to persuade three federal appeals court judges Wednesday to dismiss two major lawsuits challenging the Bush administration's warrantless wiretapping program.
The interest was so high in the unusual joint hearing that the U.S. 9th Circuit Court of Appeals provided two rooms for overflow spectators.
In the first case, lawyers representing millions of AT&T customers are seeking damages from the telecommunications giant for allegedly sharing their private records with the National Security Agency as part of a massive surveillance program.
In the second case, an Islamic charity asserts that the organization and two of its attorneys were illegally spied on as part of another NSA spying endeavor, called the Terrorist Surveillance Program.
The two cases are among dozens filed across the country after the surveillance program was revealed in a December 2005 news story.
The government is attempting to have all the cases dismissed under the "state secrets" privilege, established by the Supreme Court in 1953, that bars presentation in court of evidence that could threaten national security. However, lower court judges in both of these cases rejected the government's initial attempts to get the cases tossed.
On Wednesday, Deputy Solicitor General Gregory Garre said litigating the AT&T action "could result in exceptionally grave harm to national security in the United States."
Neither the government nor AT&T has admitted or denied whether the company worked with the government on a massive surveillance program. Indeed, President Bush has denied widespread warrantless domestic wiretapping but acknowledged surveillance in cases in which one of the callers is believed to have ties to Al Qaeda.
In response to a question from Judge M. Margaret McKeown, Garre said the government stands behind Bush's statement. However, Garre also said it was unlikely that a federal official would be willing to sign a sworn court affidavit to that effect. If the government either affirmed or denied that there was a broad surveillance program it would provide valuable information to the country's enemies, Garre suggested.
Judge Harry Pregerson, a World War II veteran and the senior member of the panel, questioned whether the Justice Department was asking the judges to "rubber stamp" the Bush administration's claim that state secrets were at risk in the AT&T case. "Who decides whether something is a state secret or not?" Pregerson asked.
Garre said that the judges had a role to play but that prior rulings dictate that jurists should accord "ultimate deference" to the executive branch.
"What does 'ultimate deference' mean? Bow to it?" Pregerson responded.
AT&T attorney Michael Kellogg spoke briefly, saying the company's ability to defend itself was limited. "The government has said that whatever AT&T is doing with the government is a state secret. As a consequence, no evidence can come in whether the individuals' communications were ever intercepted or whether we played any role in it," Kellogg said.
Plaintiffs attorney Robert Fram said his clients have powerful evidence that AT&T worked on a huge surveillance program.
Fram, a private lawyer working with attorneys from the Electronic Frontier Foundation, cited a sworn declaration by former AT&T employee Mark Klein, describing a super-secure room on the sixth floor of a building on Folsom Street in downtown San Francisco where AT&T assembled high-powered equipment for a "special job" for the NSA.
Klein said in his declaration that very few people were allowed in the room, and that both "a physical key for the cylinder lock and a combination code number to be entered into an electronic keypad on the door" were required for entry.
He described in some detail the fiber-optic equipment in the room and said he had heard from other company employees that similar operations were being put together in Los Angeles, San Diego, San Jose and Seattle.
AT&T attorney Kellogg said Klein was a line technician who "never had access to the 'secret room' he purports to describe."
Fram stressed that his clients were not trying to obtain any information on the NSA's sources and methods. Rather, he said, the mere fact that the secret room exists is sufficient to show that there was a surveillance program and gives his clients standing to go forward.
But McKeown countered, "You haven't proved what the relation is between AT&T and the government."
The second case, brought by the Al-Haramain Islamic Foundation, was upheld by U.S. District Judge Garr King in Portland, Ore., last year because the Treasury Department inadvertently gave the group call logs indicating the charity had been spied on.
In the second half of the argument, Justice Department attorney Thomas Bondy argued that the Al-Haramain officials and lawyers had to rely on their memory of the call logs because they had been forced to return them to the government.
"The only way to check the recollections is to match them against the document. Let's be clear that that would be a proceeding about the document," Bondy said, adding that such a hearing would be impossible because the document is "totally classified" and at a very high level of security.
Judge Michael Daly Hawkins asked, "Every ampersand, every comma is top-secret?"
Bondy responded, "This document is totally nonredactable and nonsegregrable and cannot even be meaningfully described."
There is no set time frame for the court to rule.