Phone customers, charity challenge U.S. wiretapping

SAN FRANCISCO — Justice Department attorneys attempted to persuade three federal appellate court judges Wednesday to dismiss two major lawsuits challenging the Bush administration's warrantless domestic-eavesdropping program.

Interest was so high in the unusual joint hearing that the 9th U.S. Circuit Court of Appeals provided two rooms for overflow spectators.

In the first case, lawyers representing millions of AT&T customers are seeking damages from the telecommunications company for allegedly sharing their private records with the National Security Agency (NSA) as part of a massive surveillance program.

In the second case, an Islamic charity asserts that the organization and two of its attorneys were illegally spied on as part of another NSA spying endeavor, dubbed the terrorist surveillance program (TSP) by the Bush administration.

The two cases are among dozens filed across the country after the surveillance program was revealed in December 2005.

The government is attempting to have all the cases dismissed under the "state secrets" privilege, established by the Supreme Court in 1953 barring presentation in court of evidence that could threaten national security. However, lower-court judges in these two cases rejected the government's initial attempts to have the cases tossed.

On Wednesday, Deputy Solicitor General Gregory Garre said litigating the AT&T action "could result in exceptionally grave harm to national security in the United States."

Neither the government nor AT&T has admitted or denied whether the company worked with the government on a massive surveillance program. President Bush has denied widespread warrantless domestic eavesdropping but acknowledged surveillance in cases in which one of the callers is believed to have ties to al-Qaida.

In response to a question from Judge M. Margaret McKeown, Garre said the government stands behind Bush's statement.

AT&T attorney Michael Kellogg said the company's ability to defend itself was limited. "The government has said that whatever AT&T is doing with the government is a state secret."

Plaintiffs' attorney Robert Fram said his clients have powerful evidence that AT&T worked on a huge surveillance program.

Fram, a lawyer working with attorneys from the Electronic Frontier Foundation, cited a sworn declaration by former AT&T employee Mark Klein, describing a supersecure room in a building in San Francisco where AT&T assembled high-powered dating-mining equipment for a "special job" for the NSA. He said he had heard from other employees that similar operations were being put together in Los Angeles, San Diego, San Jose and Seattle.

The second case, brought by the Al-Haramain Islamic Foundation, was upheld by U.S. District Judge Garr King in Portland last year because the Treasury Department inadvertently gave the group call logs indicating the charity had been spied on.