A US appeals court has agreed to weigh a government motion to dismiss a lawsuit alleging that the National Security Agency (NSA) monitored phone lines and emails without a warrant, but judges asked a government lawyer tough questions over the issue.
The Electronic Frontier Foundation (EFF) filed a class action lawsuit against AT&T claiming the company violated the privacy rights of its customers when it cooperated with an NSA programme of monitoring AT&T customer phone calls and e-mail traffic without warrants.
Deputy Solicitor General Gregory Garre, representing the government, argued that letting the case go to trial, "would reveal the sources, methods and operational details" of government intelligence activities. The alleged monitoring is part of more rigorous surveillance practices put in motion after the terrorist attacks of 11 September, 2001.
After a two-and-a-half hour hearing, the US Court of Appeals for the 9th District, in San Francisco, said it will consider the dismissal motion as well as a one in a second lawsuit also challenging the NSA programme.
But Appeals Court judges Michael Daly Hawkins, Margaret McKeown and Harry Pregerson, peppered Garre with questions, challenging his argument that the state secrets privilege trumps the right of the plaintiffs to have their case heard.
Pregerson asked Garre how a court is to decide whether something the executive branch claims is a state secret is a secret, if the executive branch won't reveal what it claims is a secret.
"Who decides what's a state secret? Are we just a rubber stamp? We're just supposed to take the word of the executive?" Pregerson asked.