Today’s Must Read

The Justice Department argued yesterday before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco that two class-action lawsuits involving warrantless surveillance needed to be thrown out of court for potentially exposing state secrets. And it practically got laughed out of court.

The two cases, Hepting v. AT&T and al-Haramain v. Bush, both center on aspects of the secret surveillance effort run by the National Security Agency after September 11, 2001. In the former case, an ex-AT&T employee claims that the company illegally provided the government with access to a panoply of subscriber information through a system of communications hubs along the west coast. The latter case involves an al-Qaeda-linked charity that claims to have evidence that it was the target of illegal surveillance.

The Justice Department claims that neither case can go forward without compromising crucial intelligence-gathering materials, and asked the judges to dismiss them. Deputy Solicitor General Gregory G. Garre and DOJ lawyer Thomas M. Bondy didn’t find them particularly sympathetic.

“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.’ ”

At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that “other avenues” are available. “What is that? Impeachment?” Pregerson shot back.

The 9th Circuit is known as one of the most liberal appellate courts. Hearing the cases were three judges appointed by Presidents Bill Clinton and Jimmy Carter. Should it lose, the Justice Department will surely appeal, in the not-unreasonable expectation that a higher court will be more solicitous of the government’s predicament.

Still, the hearing yesterday aired the Bush administration’s central contentions in the warrantless surveillance controversy: that national security compelled it, after 9/11, to launch a widespread program of international surveillance — it claims purely domestic communications weren’t involved — that would have suffered from judicial oversight.

McKeown repeatedly referred to a public statement by President Bush that the government does no domestic wiretapping without first obtaining a warrant, and asked whether administration officials would provide that assurance under oath. Hawkins also requested the assurance, arguing that “no court in the land” would accept a public statement as binding.

“If there were in fact widespread surveillance of American citizens, there would be no [legal] remedy, yes or no?” McKeown asked Garre. He responded by reiterating that litigation would inevitably lead to exposing methods that must be kept secret to be effective.

If yesterday’s grilling session was any indication, those secrets might actually be aired. Since the Bush administration is resisting subpoenas from the Senate Judiciary Committee over internal documentation establishing the legal basis for surveillance efforts, that would make San Francisco the only public forum for insight into one of the controversial national-security programs of the post-9/11 era.