NSA secret surveillance activity

Judges should give executive unchecked surveillance, utmost deference

Judge Harry Pregerson asked a government lawyer:

“Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?”

His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the administration, replied that the courts had a role, though a limited one, in assessing the government’s assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security.

Judges should give executive branch the utmost deference

Judges, he said, must give executive branch determinations “utmost deference.”

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Mr. Garre said, referring to the assessment of intelligence officials.

The three judges, members of the United States Court of Appeals for the Ninth Circuit, were hearing arguments in two lawsuits challenging the highly classified surveillance programs, which the administration says are essential in fighting international terrorism.

Preliminary issues will determine if merits can be considered

The appeals concern two related questions that must be answered before the merits of the challenges can be considered:

whether the plaintiffs can clearly establish that they have been injured by the programs, giving them standing to sue; and whether the state secrets privilege requires dismissal of the suits on national security grounds.

The impact of the appeals court’s ruling may be quite broad. Should it rule for the government on either ground, the legality of the N.S.A. programs may never be adjudicated.

NY Times Article, US defends surveillance program before three skeptical judges

Fred Soto is an Attorney and Entrepreneur from the Silicon Valley.
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