State Secrets Weighed in Wiretap Case

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Three judges appeared skeptical of government arguments yesterday in an appeal of two consolidated cases challenging terrorism surveillance tactics.

All three indicated they were inclined to allow the case to proceed, at least on a limited basis, the New York Times reports. However, the Recorder says the judges were more hostile to government arguments in the first case, involving allegations of government data mining, than in the second, in which plaintiffs contend they have proof they were illegally wiretapped because of the government’s inadvertent release of a classified document.

The government is asking the San Francisco-based 9th U.S. Circuit Court of Appeals to dismiss the cases on two grounds. The first is that the plaintiffs haven’t shown an injury by the National Security Agency wiretap programs and have no standing to sue. The second is that national security requires dismissal of the cases under the state secrets privilege.

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Deputy Solicitor General Gregory Garre argued for the government in the data-mining case.

Judge Harry Pregerson spoke with a tone of “incredulity and frustration” when questioning Garre, the Times says. “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?” he asked. According to the Recorder, Pregerson “leans further to the left than perhaps any other 9th Circuit judge.”

Wired magazine live-blogged the arguments.

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