Yesterday, there was a hearing in the 9th Circuit Court of Appeals on the AT&T/NSA case. Down the rabbit hole, indeed:
Judge Harry Pregerson…suggests the government is asking the courts to “rubber stamp” the government’s claim that state secrets are at risk “Who decides whether something is a state secret or not? … We have to take the word of the members of the executive branch that something is a state secret?”
Garre counters that the courts should give “utmost deference” to the Bush administration.
Judge Pregerson: “What does utmost deference mean? Bow to it?”…
AT&T attorney Michael Kellogg…has taken the podium, and, not surprisingly, insists the case has to be dismissed. He says AT&T customers have no actual proof or direct knowledge that their communications were forwarded to the government without warrants.
“The government has said that whatever AT&T is doing with the government is a state secret,” Kellogg says. He adds, “As a consequence, no evidence can come in whether the individuals’ communications were ever accepted or whether we played any role in it.”…
Al-Haramain lawyer Eisenberg argues that the government’s rationale for dismissing the cases on state secrets grounds doesn’t apply to his clients, since they already know they were surveilled from seeing the secret document.
McKeown asks whether the foundation’s attorneys would have a case if the government hadn’t inadvertently disclosed the call log.
“We wouldn’t have known we were surveilled,” Eisenberg replies. “Had they not made a mistake and revealed it to the victims… who would be out here to sue?” (emphasis mine)
Trust us — just doesn’t cut it, now does it? Good lord, that truly is the biggest bunch of jabberwocky that I have ever heard. And I can see why this is going to undoubtedly end up at the US Supreme Court, where civil liberties have been so revered of late (thanks Alito and Roberts wafflers…you’re swell). Jeebus, now I’m pissed off about the FISA votes all over again…