California appeals court to review spying cases

A California appeals court will examine two cases this week that could impact the federal government's high-tech surveillance of Americans. The Wednesday hearings come after a new law that broadens intelligence officials' eavesdropping power.

The Bush administration wants the 9th U.S. Circuit Court of Appeals to dismiss the lawsuits, contending that they could jeopardize highly sensitive "state secrets." Because the privilege prevents litigants from obtaining classified data, the cases lack standing, the Justice Department argued.

The Supreme Court ruled in 1953 that the executive branch could bar evidence from court if it was deemed a national security threat, senior agency officials told reporters Monday. When the material in question is scrubbed from a case, the complaint may or may not fall apart, they said.

"We're not arguing that this means the judges should look at classified material secretly and rule in favor of the government on the merits of the claims," one staffer said. The government is simply pushing for "a decision that the case can't be litigated in light of national security interests involved."

In one case, the Electronic Frontier Foundation accused AT&T of collaborating with the National Security Agency in illegal spying on millions of customers. In the other, the Al-Haramain Islamic Foundation alleged that the government illegally wiretapped calls between the charity and its lawyers.

In the AT&T case, EFF claims that the telecommunications firm provided the NSA a "dragnet" that collects "all or substantially all of the communications of U.S. citizens," a Justice official said. The second claim pertains to the alleged preservation of AT&T customers' call records.

U.S. District Judge Vaughn Walker ruled in July 2006 that there was "sufficient" grounds to let the lawsuit move forward, after the government intervened in the case. He held that the administration cast too wide a net over information it argued deserved state-secrets protection.

Al-Haramain's challenge is focused on the terrorist surveillance program, a once-secret eavesdropping tool whose existence President Bush confirmed in December 2005 after it was exposed by The New York Times.

The group, which the government believes has ties to the al Qaeda network, argued that it is not a terrorist organization and sued for damages relating to past surveillance as well as injunctive relief. Justice also wants that case dismissed under the stat-secrets privilege.

"At issue here is whether the courts have any meaningful role to play in protecting Americans' privacy from executive branch abuses of its surveillance powers," EFF Legal Director Cindy Cohn said in a statement.

If the government's state-secrets claims are allowed to impinge on litigation, "the courts will never be able to exercise their constitutional duty to hold the White House accountable for illegal and even unconstitutional abuses of power," she said.

Justice has not filed paperwork with the appeals court on how or if a new law that alters the Foreign Intelligence Surveillance Act would impact either case, officials said. The change, which expires in six months, allows the national intelligence director and attorney general to authorize certain spying activities without first getting warrants from the secret FISA court.

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