The Political Chase

Appeals Court Smacks Gov’t Lawyers on Surveillance Programs

Based on comments and questions from the bench, The U.S. Court of Appeals for the 9th District appeared to view the Bush administration’s warrantless intelligence surveillance as a mockery of democracy and contemptuous of the Constitution. Yesterday, lawyers for the administration argued “that the government’s surveillance efforts cannot be challenged in court because the litigation might reveal state secrets,” the Washington Post reports.

The two cases, Hepting v. AT&T and Al-Haramain Islamic Foundation v. George W. Bush, were presented to the highest court thus far with respect to challenging the legality of the NSA’s spy program, with the panel delivering blistering smackdowns to the government’s arguments.

While neocons have a longstanding disdain for the San Francisco based court, the panel delivered the following smackdowns to the government’s arguments.

“The bottom line here is the government declares something is a state secret, that’s the end of it. No cases. . . . The king can do no wrong,” said Judge Harry Pregerson, one of three judges from the U.S. Court of Appeals for the 9th Circuit who grilled administration lawyers at length over whether a pair of lawsuits against the government should go forward.

[…] “This seems to put us in the ‘trust us’ category,” Judge M. Margaret McKeown said about the government’s assertions that its surveillance activities did not violate the law. ” ‘We don’t do it. Trust us. And don’t ask us about it.’ “

[...Deputy Solicitor General Gregory G. Garre], who had been scheduled to speak for 20 minutes, was kept at the podium for twice that time fielding hardballs. But some of the sharpest queries appeared grounded in concerns — such as the scope of judicial authority — that may be shared by jurists across the political spectrum. “Well, who decides if something is a state secret or not?” Pregerson asked. “Are you saying the courts are to rubber-stamp the determination of the executive of what’s a state secret? What’s our job?”

[...] Government attorneys labored to assure the judges that the administration appreciates their role, while arguing that national security concerns require judges to dismiss cases that might expose state secrets.

“Is it the government’s position that when our country is engaged in a war that the power of the executive, when it comes to wiretapping, is unchecked?” Pregerson asked. No, Garre replied, but he cited an earlier federal ruling that required courts to give “utmost deference” to security concerns.

“Well, what does ‘utmost deference’ mean?” Pregerson asked. Before Garre could reply, Judge Michael Daly Hawkins asked: “It doesn’t mean abdication, does it?”

Obviously these wise judges did not attend the Roberts and Alito School of Judicial Activism.