Analysis: NSA Lawsuit Like Alice's Wonderland

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If you're the U.S. federal government, how can you prove to someone that something should be kept secret if you can't tell them what the secret is because it's a secret? If you're a federal judge, how can you decide whether someone gets to keep a secret if the secret-keeper won't say what the secret is?

The debate over liberty versus security in this post-9/11 age took a trip down the rabbit hole and through the looking glass in a federal courtroom in San Francisco Wednesday, over the alleged U.S. National Security Agency (NSA) program of monitoring the phone and e-mail communications of Americans to try to stop terrorists before they strike.

More than one participant likened the testimony to "Alice's Adventures in Wonderland," the classic children's book by Lewis Carroll. Compare and contrast this excerpt from the book with what went on in court. This snippet occurs when Alice, attending the Mad Hatter's tea party, suddenly notices the March Hare's curious timepiece.

"'What a funny watch!' Alice remarked. 'It tells the day of the month, and doesn't tell what o'clock it is!'

"'Why should it?' muttered the Hatter. 'Does your watch tell you what year it is?' Alice felt dreadfully puzzled. The Hatter's remark seemed to have no sort of meaning in it, and yet it was certainly English."

Testimony at the hearing Wednesday was in English but often left the judges "dreadfully puzzled."

At the U.S. Court of Appeals for the Ninth Circuit, a U.S. Department of Justice lawyer asked three appeals court judges to dismiss a class-action lawsuit brought by the Electronic Frontier Foundation on behalf of an AT&T customer. The suit accused AT&T of violating the privacy rights of its customers by letting the NSA set up shop inside an AT&T switching station in San Francisco, monitoring customers' e-mails and phone calls without a warrant.

The DOJ sought the dismissal because, at trial, it could be revealed that the NSA worked with AT&T to wiretap Americans without a warrant, which is a state secret, if indeed such a program existed at all. The government can't say, because that's a state secret.

Airing evidence in the case "would reveal the sources, methods and operational details" of government intelligence activities, argued Gregory Garre, deputy solicitor general in the DOJ.

Appellate Judge Margaret McKeown responded by paraphrasing public comments by U.S. President George W. Bush, whom she reported as saying, "There is no surveillance of domestic phone calls without a warrant."

The Bush comment came up again when AT&T attorney Michael Kellogg, also argued for dismissal on the Wonderland-like grounds that allowing the case to go forward, yet not violate state secrets, would prohibit AT&T from presenting a defense.

"Any sort of program is a state secret," Kellogg said

"Even if the program doesn't exist?" McKeown replied, referencing the president's claim.

"Whether or not it exists is a state secret," Kellogg answered.

"But if President Bush said it's not happening, how could that be a secret?" the judge asked.

These are some of the reasons the hearing lasted two and a half hours.

Garre also asked the judges to dismiss a case brought against Bush, specifically, over the NSA's warrantless surveillance program. The plaintiff is the Al-Haramain Islamic Foundation, which claims it was spied on by the NSA without a warrant.

At a news conference on the courthouse steps after the hearing, attorney Jon Eisenberg, representing the foundation, admitted it felt "surreal" trying to discuss in court a partial exchange of affidavits between himself, the U.S. government and a judge arguing a point in the case that can't be made public.

"I'm at a disadvantage because I don't know the government's side of that argument. I only know my side. They have seen my secret brief. I have not seen their secret briefs," Eisenberg said. "Yeah, I guess it is a bit like going down the rabbit hole."

Eisenberg concurred when, in court, McKeown remarked, "I feel like I'm in Alice in Wonderland."

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