Surveillance Lawsuits Tricky to Prosecute

How do you sue the government over a surveillance program when the program itself is a state secret? That thorny question has landed in the lap of the U.S. 9th Circuit Court of Appeals in San Francisco.

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How do you sue the government over a surveillance program when the program is a state secret? That thorny question has landed in the lap of the U.S. 9th Circuit Court of Appeals in San Francisco.

Yesterday, a three-judge panel heard arguments in a couple of high-profile cases against the government's controversial electronic eavesdropping program. Both the lawyers and the judges had to choose their words carefully.

NPR's Martin Kaste reports from San Francisco.

MARTIN KASTE: The plaintiffs in these two cases say they know their electronic communications were tapped by the government. They also believe the spying was illegal, conducted without warrants. But none of that was really at issue yesterday.

Government lawyer Gregory Garre neither confirmed nor denied the surveillance. Instead, he told the court that the lawsuits should be dismissed.

Mr. GREGORY GARRE (Deputy Solicitor General, Department of Justice): Litigation must come to an end in order to protect the essential interests of national security.

KASTE: The government is invoking what's known as the state secrets privilege. It's a concept that's been around for decades and it's been upheld by the Supreme Court.

Still, the three-judge panel in San Francisco seemed uncomfortable with the notion. Judge Harry Pregerson asked Garre if the court was just supposed to trust the administration.

Judge HARRY PREGERSON (9th Circuit Court of Appeals, California): We just have to take the word of the members of the executive branch that tell us it's a state secret.

Mr. GARRE: We don't…

Judge PREGERSON: That's what you're saying, isn't it?

Mr. GARRE: No, your honor. What this court's precedents say is the court has to give the utmost deference to the assertion. And the second part of the (unintelligible)…

Judge PREGERSON: But what does utmost deference mean? We just bow to it?

KASTE: In one of the two cases, the plaintiffs are American lawyers for a Saudi national who was suspected of funding terrorism. They've actually seen a secret government document that they believe proves that their calls to their client were tapped. The paper is believed to be some kind of a government log of intercepted phone calls. It was sent to the plaintiffs by mistake then recovered by the FBI.

Since the document has now been repossessed, the plaintiffs have to rely on their memories of what it contained.

Government lawyer Thomas Bondy says that's no basis for a lawsuit.

Mr. THOMAS BONDY (Attorney, Department of Justice): Once the document is out of the case, which it has to be because it's privilege, it seems to us quite clear that mental recollections of the document are also out of the case. The only way to test the veracity of those recollections would be to compare them against the document itself.

KASTE: And that document is apparently not something you can just wave around in open court. That's a real problem. Even the lawyer for the plaintiffs, Jon Eisenberg, found himself struggling to find a way to explain the importance of the document to Judge Margaret McKeown without actually giving away any of its secrets.

Mr. JON EISENBERG (Attorney): All we need is a document that shows there was…

Judge MARGARET McKEOWN (9th Circuit Court of Appeals, California): Your client's name…

Mr. EISENBERG: …there was surveillance.

Judge McKEOWN: But that means that you need a document with your client's name?

Mr. EISENBERG: No, actually not.

Judge McKEOWN: Organization or something?

Mr. EISENBERG: Actually not.

KASTE: Eisenberg had to stop himself and refer the judge to a brief that he filed under seal. And this, says the government, is what makes it so hard to hold a fair trial about state secrets.

Eisenberg responds by accusing the government of exaggerating the secrets at stake. He says courts should not just blindly take the government's word about which secrets are truly sensitive.

Mr. EISENBERG: Then, as a practical reality, they're right. The president does have inherent authority to do what ever he wishes in the name of national security during a time of war.

KASTE: Since the existence of an electronic surveillance program was disclosed a year and a half ago, nearly 50 lawsuits have been filed against the government and phone companies, accusing them of illegal wiretapping. But most of those are on hold while these two cases test the limits of the government's state secrets privilege.

Martin Kaste, NPR News, San Francisco.

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