August 16, 2007 | By Derek Slater

Judges Grill Government at NSA Surveillance Hearing

In a packed San Francisco courtroom yesterday, EFF urged the 9th U.S. Circuit Court of Appeals to allow AT&T customers to continue to fight against illegal spying on their telephone and Internet communications.

A ruling probably won't come out for months, but at the hearing the judges were certainly asking the right questions about the serious constitutional issues at stake. The government is trying to get the case thrown out, arguing that thin claims of "state secrets" can trump the courts' constitutional duty to uphold the rule of law. All three judges grilled the government's attorney on this point and appeared worried that granting its motion to dismiss would amount to an abdication of authority. Judge Harry Pregerson asked the government's attorney, "Are you saying the courts are to rubber-stamp the determination of the executive of what's a state secret? What's our job?"

As we've argued, the courts are well equipped to protect state secrets while determining whether the spying is illegal and if so, to put a stop to it. Judicial review is one of the essential checks and balances that define our democracy. No president, now or in the future, should be allowed unfettered authority to evade the courts and trample on your freedom.

Audio from the whole oral argument is available here. Wired's Threat Levels posted a live blog blow-by-blow, and ACLU-NC's Nicky Ozer posted this summary after attending the hearing. The Washington Post, NY Times, San Jose Mercury News, News.com among many others have posted reports.

The panel of judges also heard oral arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the federal agents illegally wiretapped calls between the charity and its lawyers. The government wants this case dismissed on state secrets grounds as well. The LA Times covered the case's background yesterday, and you can hear the oral argument here.

Update: Video from the hearing is now available here.


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