Challenge to Alleged NSA Domestic Internet Surveillance Gets Federal Hearing

SAN FRANCISCO -- A three-hour hearing in federal district court Friday examined questions Judge Jeffrey White still had after reading the briefs on cross-motions for summary judgment and to dismiss cases challenging the government’s alleged warrantless online surveillance program. The cases, Carolyn Jewel v. the National Security Agency (NSA) and Virginia Shubert v. George W. Bush, were brought after Mark Klein, a one-time AT&T engineer in San Francisco, raised allegations that AT&T was diverting Internet traffic to an NSA-controlled room in AT&T’s San Francisco facilities.

White had given counsel for both parties 11 questions he found to have been unanswered in their initial briefs. They ranged from what weight the court must give other recent decisions in the same appellate circuit to how the various laws cited by parties -- such as the Wiretap Act, the Stored Communications Act, the Foreign Intelligence Surveillance Act and the Administrative Procedure Act -- interplay in this context.

White’s written questions and his questioning during the hearing showed the court is considering the matter very carefully and considerately, Richard Wiebe, the attorney representing Jewel, told us after the hearing. “He had a number of strong questions for both sides,” Wiebe said and “clearly cared about whether there is a way for this case to go forward” while balancing national security needs with the rights of the plaintiffs.

At one point during the hearing, amid a discussion of the government’s arguments for dismissing the cases on state secrets grounds, White told Justice Department Attorney Anthony Coppolino that the government’s arguments were “a little bit of a Catch-22.” Coppolino had argued that the plaintiffs can’t prove they have been personally injured, and therefore have no standing to bring a lawsuit, without requiring the disclosure of privileged information. “The issues subject to our states secrets privilege go the to heart of this case,” Coppolino said.

There’s no deadline for White to rule on the motions, Wiebe said after the hearing. If he rules in favor of the plaintiffs, government attorneys all-but promised during the hearing to appeal the case immediately and asked White to certify the case for interlocutory appeal. “If you're going down this road let us appeal first,” Coppolino said during the hearing. He argued the case should be certified given the “wholly unprecedented nature” of the plaintiffs’ requests.

The hearing was the first in the court’s history to be video recorded for upload to the Federal Courts’ website under a pilot program to bring cameras into the courtroom, White said before the hearing. The video was set to be available at http://xrl.us/bn6i2p. No party objected to its upload.