 that confirming or denying an AT&T surveillance program could aid terrorists. Earlier, a U.S. District Court rejected this argument. From the 9th Circuit Court of Appeals, it's about 90 minutes. Got to sell out crowd today, huh? We call them matters as they appear on the calendar. First matter, Tosh Hepting versus AT&T Corporation and the United States as a defendant, intervener, slash appellant. Thank you, Judge Prager-Sinemae. I please the court. My name is Gregory Garn. I'm appearing here today on behalf of the United States. Your Honors, the nation's top officials whose job it is to assess and protect foreign intelligence have determined that litigating this action could result in exceptionally grave harm to the national security of the United States. They've reached that judgment because litigating this action would require the adjudication of three central facts, each of which directly implicates state secrets. First, whether or to what extent any secret intelligence gathering relationship exists between AT&T and the government. Second, whether or to what extent any alleged surveillance activities have taken place. And third, whether or to what extent any particular communications have been intercepted. As a director of national intelligence and the director of the national security agency have explained in the public and non-public declarations filed with this court, litigating those central facts could compromise the sources, methods, and operational details of our intelligence gathering capabilities. And equally important, could disclose potential gaps in those capabilities. The state secret doctrine is a common law doctrine, isn't it? Your Honor, this court described it as a common law doctrine in the Casa decision. In our view, it also has constitutional underpinnings. We think that's supported by the Supreme Court's decision in United States versus Nixon. It's something that the Fourth Circuit recently illuminated in the El-Masry case. And it's something that the DC Circuit discussed in the Halkin decisions. And that stems from the fundamental duty of the executive to protect the national security in our Constitution. Why shouldn't we view the FISA law as having supplanted the common law doctrine? Well, Your Honor, the plaintiffs in this case refer the court in particular to one provision, Section 1806 F. And that argument doesn't work for a couple of reasons. First, 1806 by its terms doesn't apply, and I'll explain why in a moment. And second, under this court's decision in Casa, the court determined that you need to conclude more than just the Congress legislated an area, but that there is a clear statement, a clear indication on the part of Congress that it intended to supplant the State Secrets Doctrine. And certainly no clear statement is in the law in this case. Wasn't FISA enacted after congressional hearings and findings about abuses of telecommunications and interceptions of telecommunications? It was, Your Honor. But one thing that both the text of the law and the legislative history makes clear is that the provision, I think you have in mind 1806 F, is addressed to the situation where the government uses FISA-obtained surveillance against a person who knows he's been subject to surveillance. The one court that we think has come closest to considering this issue, and that's the D.C. Circuit and the ACLU Foundation versus Barcase, concluded that FISA does not impose an obligation on the government to disclose intelligence that's never been disclosed. And that's the question that the court has before it. So in your view, then, the State Secrets Doctrine would trump any congressional legislation in the FISA provisions? Well, in our view, Judge McEwen, there is no provision in FISA that supplants the Doctrine, and there is in particular certainly no clear statement on the part of Congress that intended to supplant it. And keep in mind, plaintiff's argument would require the court to adopt the position that FISA establishes a FOIA provision in effect that would permit any criminal, any drug dealer, or any terrorist to come into court to bring suit to demand the United States to establish whether or not that person has been subject to surveillance and what type of surveillance. Doesn't FISA have a provision for in-camera examination of documents and determination of secrets by Article III judges? It does, Judge Hawkins, and it's in 1806 F. That's the provision of the statute that deals with use of information. And if you look at the terms of that provision, it refers to situations where the government is either affirmatively using the evidence against an aggrieved person. That's the term that the statute uses, and it's a term that it defines to mean someone who knows he's been subject to surveillance. The plaintiffs in this case have not offered any bit of evidence or proof to establish that they themselves have been subject to surveillance. Let me ask you, one of their complaints is that there is a widespread program for domestic surveillance. And if that's true, which some people have termed a dragnet, then wouldn't these plaintiffs, like everyone, be subject to that surveillance? Let me respond to that in a couple of ways. First, in fact, what they've alleged is that all or a substantial number, that's the language that comes from their complaint, have been subject to some kind of surveillance. So it's certainly not all. And second, more fundamentally, we don't think that a plaintiff can plead around the restrictions that have existed for decades on establishing their standing, on establishing an ability to proceed with a claim, by pleading the broadest imaginable claim, a quote-unquote surveillance dragnet of all Americans' communications, which is something that the government, of course, has denied. Well, may I ask you about that, because I did look. I mean, President Bush said the government does not listen to domestic phone calls without court approval. Does the government stand by that position? Yes, we do, Your Honor. And so my question is, if that's true, and presumably there's evidence to back that up, since there would be nothing, since it doesn't happen, and there would be documents to back up that the President has or has not authorized that, why wouldn't at least that portion of the lawsuit be permitted to proceed to an effect come to verification of this statement by President Bush? For these reasons, Your Honor, first of all, the court dealt with a similar issue in the CASA case where they sought, the plaintiffs sought to litigate the government's denial that the name of the location at issue was Area 51. And the court rejected the argument that because the government had made a denial that the courts could litigate the veracity of that denial because the surrounding matter was shrouded with state secrets. Second, more generally, in effect, Let's stop there because there it implicated state secrets. If the government is not as alleged in the complaint, you know, intercepting millions of customers' communications, why is that a state secret? Why wouldn't the government, in fact, want to put that on the record in a sworn statement in addition to President Bush's statement? Your Honor, we would be thrilled if this litigation would go away if the government made that denial. But I would venture to guess that the plaintiffs wouldn't accept that denial and that what they would want to do is force the government to prove the negative, which would require it to get into precisely the matters that are subject to the state secrets assertion, the sources, methods, and operational details of any surveillance activities that are taking place and equally important, the potential gaps and any capabilities of the United States to engage in surveillance. If the denial itself would put an end to the litigation, that would be fine. But again, they, in effect, are asking the government to prove the negative and improving the negative, that would take the courts precisely into the heartland of the matters that are the subject of the assertion. Well, maybe one of the problems is that we're painting too broad a brush when we talk about the litigation because as I've received the complaint and now the documents, there's really three aspects of it. And maybe you can tell me if you agree with this. One, what I call this dragnet claim of all these communications, maybe not everyone, but many, which President Bush says doesn't happen. The second is what's now been called the terrorist surveillance program where there is one end is foreign and they target al-Qaeda affiliates. And then the third is what I'll call communications records. Would you agree that those are the three areas that are in the litigation? One of those areas is not a litigation and that is the terrorist surveillance program. The plaintiffs have made clear on page 82 of their red brief that that conduct is not an issue in this case. It's something that they reiterated in their 28J letter with respect to the ACLU decision from the Sixth Circuit. The other two programs I would agree with you, Judge McKeown, are at issue, the dragnet and the communications records. And I think it's just to focus on the communication records for a bit because it has become the lost part of this case because plaintiffs have spent so little time on it in their appellate brief. The district court with respect to that program, as has every other court that has considered it, the district court in the Sixth Circuit case and the Sixth Circuit unanimously concluded that the existence or not of the type of communications records program that plaintiffs alleged is a state secret, is currently a secret. But the district court nevertheless allowed that claim to proceed under the guise that there might be inadvertence disclosures during the course of this litigation. Now, on that point, if it is a state secret and typically if that were upheld, of course, that portion of the litigation would end, correct? That's correct, Your Honor. But of course, if later there were disclosures, then presumably there could be subsequent litigation over that point. That's true, Your Honor. That's absolutely true. But what the precedents make clear is that courts should not play fire with chance and risk further disclosure once they determine that the state secret's privilege has been properly asserted. At that point, CASA make this clear, the CASA case makes this clear, the Supreme Court's decision intent makes this clear. The litigation must come to an end in order to protect the essential interests of national security that the privilege is designed to facilitate. Well, who decides whether there's something as a state secret or not? Ultimately, the courts do, Your Honor, in adjudicating the government's assertion of the privilege. And they do, as this court said in the CASA case, apply the utmost deference to the assertion of the privilege and the judgments of the people whose job it is to make predictive assessments of foreign assertions. Are you saying the courts are to rubber stamp the determination that the executive makes that there's a state secret? We are not, Your Honor. And we think that the courts play an important role. What is our job? Your job is to determine whether or not the requirements of the privilege have been properly met. And that includes the declaration, the sworn declaration of the head of the agency asserting the privilege and the assertion that that individual asserting it has personal knowledge of the matter. We just have to take the word of members of the executive branch that tell us it's a state secret. That's what you're saying, isn't it? No, Your Honor. What this court's precedents say is the court has to give the utmost deference to the assertion. And the second part of the court... What does utmost deference mean? We just bow to it? It doesn't mean abdication, does it? It does not mean abdication, Your Honor. But it means the court gives great deference to the judgments of the individuals whose job it is to assess whether or not the disclosure or nondisclosure of particular information would harm national security. And the consequences... How can I do that? Your Honor, you would look at the declarations that had been filed with this court, the public declarations, and the private declarations, and you would make an assessment as the district court did as to whether or not there's a reasonable danger of harm to national security if the matters discussed are disclosed. The district court... So we do that de novo then, since this is on a legal question on a motion to dismiss... Essentially, we think the court does do that de novo, Your Honor. The district court... So we basically start over, review the sealed record, along with the public record, and determine whether or not we agree or disagree with the district court. Because this is on a motion to dismiss and we think it's a legal question. The district court agreed with the government that the assertion of the privilege was proper, but it disagreed with the government as to the consequences of the application of the privilege in this case. Judge Walker thought the case could go forward, not withstanding the invocation of the privilege. And with respect to Judge Walker, we think that that's wrong. We think it's wrong for a couple of reasons. First of all, the controlling precedence of the Supreme Court in Tenet, this court in Casa, made clear that when the very subject matter of the action is the existence of a secret espionage relationship with the government, litigation must come to an end. The Supreme Court put it this way in the Tenet case on page 10 of the decision. When the plaintiff's success and the litigation depends on establishing the existence of a secret espionage relationship with the government, the matter cannot be litigated. As I understand, in this case, what the plaintiffs are saying is that AT&T has provided telecommunications information about its subscribers to the government without a warrant. And that in pursuing this claim, they don't want to know the content, the method of grabbing this information, if you will. In their mind, simply providing the information to an agency of the United States without a warrant is enough. Your Honor, that's not correct. Certainly, the premise of their litigation is that AT&T has entered into a secret intelligence gathering relationship with the United States. But what they're seeking from the government and what they're seeking to establish is necessarily much more. Couldn't they prove their case by simply proving that AT&T has acquiesced in providing this information to the government and did so knowing there was no warrant in between? No, Your Honor, they could not do so. In order to litigate the merits of this claim, this court would have to get into the details of any surveillance activities that were taking place or not. And the adjudication of that, whether any activities are taking place and or whether any activities are not taking place, is a state secret. The Supreme Court and the Tenant Case said even a small chance that some court will order disclosure of sources of intelligence, the identity of the sources of intelligence, could impair intelligence gathering. Let me go back to my first point then. I can appreciate that argument with respect to what we've described as the communications records. That is the non-content time, location, etc. But as to the claim of widespread domestic surveillance, which the government denies and says that they do not do it, they don't do any such surveillance without a warrant, and that there is no such program, I'm having trouble understanding why you couldn't have basic discovery on that point without disclosure as to other surveillance that may or may not be taking place. Because this seems to me to otherwise put us in the position of being in the trust us category. We don't do it, trust us, and you can't ask us about it. Well, a couple of responses to that, Judge McEwen. First of all, if the court concludes, as we think it should, that this case is about the existence of a secret espionage relationship with AT&T, then the court has to dismiss under the CASA and the tenant decisions. But even if the court gets beyond that, then it has to look at whether or not this case could be litigated. And I bring you back to my prior answer with respect to the denial of the existence of this alleged surveillance dragnet. The government would be put into a situation where it would have to prove the negative. And I think plaintiffs have made some discovery requests already in this case. And if I could just give you a sense of what they're seeking and what they therefore believe is necessary to prove it. Let me just ask you this question. You know, these are things that bother me. I mean, 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? It is not, Your Honor. And that's why we're here today. But what are the checks on it? They, if we're getting affidavits from folks in the executive branch and we have to take their word for it, what is the check? Your Honor, this court plays an important role in evaluating the legitimacy of the government's assertion of the State Secret's privilege. And of course, how do we do that? Your Honor, you look at the in-camera submissions and our position is those, those, the district court was correct that those submissions establish that there is at a minimum a reasonable danger that litigating this action could result an exceptional harm to national security. And of course, there is a whole other branch of our government, as other courts have recognized, that is open and available to address perceived claims against the executive. This court's role is... What is that, impeachment? The Congress, as the Fourth Circuit has recognized the D.C. Circuit, has recognized... Said there are other avenues. What are the other avenues? Well, certainly Congress has already undertaken inquiries into issues. But the point is that plaintiffs don't have the ability in this context to come into court and force the disclosure of matters that would compromise national security, force the disclosure by litigating issues that directly implicate State secrets. Let me stop you and ask you this question. Has Judge Walker made that determination? In other words, has he determined after looking at the top secret information that the case cannot go forward without the disclosure of that information? Judge Walker believed that the case could go forward. Could go forward. Could go forward. And we think that was ordinarily in a piece of litigation where there's some contention that State secrets may be involved. The ordinary course, wouldn't you agree, would be to let the litigation go forward. And as the government asserts the privilege, the Article III District Judge looks at the information in camera and then makes that determination. The government can always appeal back to us if they feel that determination is an error and against them. Why wouldn't that work here? Your Honor, it's not the ordinary course where the very subject matter of the action is a State secret. The Supreme Court by unanimous vote made that clear in the Tenet case and it reversed the decision by this court where the court believed that the case should go forward through the use of what it called creative in-camera proceedings. Well, there's some question about Tenet and Totten, whether they really applied to this situation because of course in those cases, one of the parties to the contract was the one suing to enforce it in effect. And we don't have that here. What we have is the plaintiff alleging a different contract between ATT and the government. So it seems to me that there really is some feature there that the Supreme Court focused on in those cases, wouldn't you agree? I agree that it focused on it, but what it said in black and white terms is that Tenet, the Totten, is not a quote-unquote contract rule. And the Casa case establishes that because that case, after all, was not sued against the government suing for breach of the contract. The Weinberger case establishes that, and it makes sense if you think about it this way. If this action had been brought by AT&T against the government suing for breach of some kind of alleged espionage relationship, I don't think there would be any serious argument, but there would have to be dismissed under the Casa decision and the Tenet decision. And the result is no different where a third party is bringing suit against AT&T and seeking through the courts to disclose the same type of information that AT&T would be seeking to litigate if it brought the suit on behalf of the government. Let me go back to the discovery issue because that follows up on Judge Hawkins as to whether the suit should be permitted to go forward in a preliminary way and then determine. So for example, not with respect to the communication record, I want to focus again on the very program that you say does not occur, and that is the widespread communications. And I have looked at the discovery request, many of which would probably be barred by the State Secrets Doctrine. But why couldn't there be documents which would not reveal anything about surveillance, but simply be executive branch statements, whether by declaration or in documents, that no one is authorized to do indiscriminate domestic surveillance without court order? What would be a State Secret about such a document? Your Honor, I want to answer your question, but I also want to say just so that my co-counsel doesn't get deprived of this time that we're dividing the argument here and he's hopefully going to have 10 minutes of the time. So I see that I've gone over my 20 minutes, but of course I want to answer all the questions. We can have AT&T out. We just charge them a little over time. Thank you, Your Honor. Or we can have them dial in and start pushing buttons. You know. Judge McKinney, ultimately the answer to that is regardless of what type of evidence plaintiffs might think that they could come forward with or that might exist, ultimately you would be asking the court to prove matters that are protected by the State Secrets Privilege, whether or to what extent any relationship existed, whether or to what extent any surveillance activities took place, and whether or to what extent any particular communications were intercepted. What would be wrong with an appropriate official of the government signing the affidavit that Judge McKinney suggests? Well, Your Honor, I guess of all, would that be subject to State Secret? The affidavit itself, a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant? As we indicated earlier, the government, the President of the United States, the Attorney General of the United States, has made clear that the government is not doing that. But would it be subject to the State Secrets Privilege? Is the litigation of the veracity to that because it would put the government- Yeah, that brings my next question. You filed the affidavit and then you explained to Judge Walker why it is you can't reveal the information behind it. At least the public has the benefit of a sworn statement from a public official that what they suspect is going on is not. And again, Your Honor, if plaintiffs are willing to accept that today as a conclusion of this litigation, we'd be thrilled. Well, we're not asking whether the plaintiff would accept it or not, we're asking really whether- And whether you'll do it. Well, whether it's so preliminary. We're just asking if, you know, we take President Bush, as he says it, it seems to me that that's based on, it could be not just a sworn affidavit, but there must be documents that say the same thing, whether from the NSC or otherwise, there would not be state secrets because documents that would corroborate that and say essentially the same thing would be no more of a state secret than the statement, correct? If you had a document that said exactly that, would that be a state secret? No, the denial itself, but going beyond that, and this is a critical point, going beyond that would put the court into the position of getting into the sources, methods, and operational details, as well as any potential gaps in intelligence. That's your way out of line making that statement. What did you just say? That going beyond the denial would take you into litigating the sources, methods, operational details, or potential gaps in that. And what we know is- Well, with that, let's say that's true and I understand, I appreciate the argument that you're making, and that is, you can go a little ways, but in your view, you can't go the entire way. Why wouldn't that determination really be made in the trial court? Because it may well be you could get some re-judgment on the basis of a sworn affidavit and the supporting document, and you wouldn't need to go any further. If you did need to go further, it may well be a state secret because you would need to go into what you are doing to show what you're not doing. And I understand that's where you're saying would be a state secret, but why? The real question is, should we, at this stage of the litigation, you know, simply draw the line? And I think the court struggled with the same exact question and the tenet case, and there was a divided decision by this court. The majority thought that the court should be creative in finding ways of going forward with the litigation, using in-camera and other procedures. Judge Talman in dissent disagreed. He thought that precedent required the different result. The Supreme Court unanimously held that where the existence of the espionage relationship is itself at issue, the litigation has to come to a conclusion. And we think that that precedent controls this case. The one thing that intelligence- Well, but the difference there is that you had, we wouldn't, in other words, ATT would fall out of this equation I'm talking about because if the government does not, as the president says, listen to domestic phone calls without court approval, it wouldn't matter whether it was ATT or subway, because if the government doesn't do it, then that's the end of the litigation on that point. I don't think AT&T falls out first because this entire action, and it's clear from paragraph two of the complaint and it's clear from all the pleadings, is predicated on the existence of this secret relationship between AT&T and their government. Their claims are that AT&T acquires information and discloses it to the government. I don't think you can peel that apart and litigate forward in this case as if the case that was brought doesn't exist anymore. Was a warrant obtained in this case? You go through the FISA court on this case? Again, Your Honor, that gets into matters that are protected by the state secrets, whether it was or whether it was not. We know, at least we've read, that the past O5 and O6 is something like more than 3,000 applications presented at the FISA court, and there was only one denial and that was a partial denial. So we know that the FISA court is working hard. That's certainly true, Your Honor, but again, and this gets down to the fundamental. I don't understand what the problem is. I just don't want to say whether this particular matter went through the FISA court. Can you say that without, since those are confidential and protected proceedings? I cannot, Your Honor, because again, it would disclose methods or means or the existence of intelligence gaps. How, to the extent that any surveillance is taking place. How would that disclose methods and means? Everybody knows about the FISA court. But what does the people do? The plaintiffs in this case allege that there is a secret room at AT&T and that alleged activities are taking place in that room. They have no proof of that, except the affidavit from someone who says that there's a leaky air conditioner and some poorly installed cable in the room, which is hardly consistent with this sort of breathtaking program they have in mind. But once you go beyond that, Your Honor, we are getting into the operational details of intelligence capabilities. And the one thing that the intelligence experts will say is the more publicly and the more concretely we educate our adversaries on our intelligence gathering capabilities, the easier it is for them to evade detection and by adapting their means. Didn't the President do that in part by making the statement that he did? And, Your Honor, again, the President did deny the existence of any sort of dragnet surveillance. But again, his statement was that the domestic calls of American citizens are not being intercepted without a warrant. Now, if I'm a member of al-Qaeda, that tells me if I'm in Miami and my buddy is up in Orlando that we can call phone to phone and unless they've obtained a warrant, those conversations are not going to be intercepted. But the plaintiffs in this case, Your Honor. So he's opened the door a bit, hasn't he? The President has denied the existence of this general program. No, that's not what Judge McKeon quoted. He said, we're not doing this. We're not doing this. If it's citizen-to-citizen within the United States, we don't do it without a warrant. And in answering Judge Pragerson's question, I understood the question to be broader than the narrow issue that you're focusing on, Judge Hawkins. I mean, the President said what he said and certainly the United States stands behind that. But that does not abrogate the state's security. You didn't have to say it, right? And, well, that's true, Your Honor. And again, the cause of the decision dealt with the exact same issue in the court there agreed that litigating the veracity of a denial would take you precisely into the matters that the state's secrets privilege is designed to protect. So are you saying that even though President Bush said that, that the allegations in the complaint has pled could include an allegation that ATT, apart from whatever President Bush says, is undertaking such activities and that for the government or ATT to defend against that would implicate the state secrets? Well, certainly adding ATT into the mix creates a different dimension and brings this case squarely into the tenant and totten world because there you're talking about disclosing the existence of secret intelligence relationships or the non-existence of those relationships. And that, as we explained, can discourage cooperation. Let's say that you said without admitting or denying, which seems to be something that is pretty common in the intelligence world and in all these documents we're looking at, without admitting or denying that the government has a relationship with ATT. I, Mr. or Mrs. so-and-so, from the executive branch under oath, essentially affirm what President Bush said. That wouldn't cause you to get into the secret room with leaky air conditioning, would it? Well, Your Honor, again, I mean the government, the president has made a statement and the government stands behind it. Our view, and maybe we're wrong about this, but our view is that plaintiffs wouldn't accept that and the discovery requests that they've made and the way they litigated this action makes perfectly clear that they want to go beyond that. They want to go into what exactly was taking place, matters that would be protected by the privilege because they would either disclose sources of methods or they would disclose potential gaps in our intelligence gathering capabilities. Let me ask you, some of these things aren't clear to me. Under FISA, can the government monitor foreign to foreign communications? Your Honor, the recent amendments- Can't you just answer that yes or no? It's, no I can't, Your Honor, because the language of FISA is very specific. There's a definition for electronic surveillance and it's very specific. And the recent amendments to FISA make clear that electronic surveillance does not include surveillance that is directed at foreign individuals. Does not include surveillance directed at foreign individuals? That's correct, Your Honor. I mean, I'm talking about people in, you're talking about people in foreign countries or foreign individuals who are here. The recent amendment, Your Honor, and I directed to the language makes clear that that is accepted from the definition of electronic surveillance. A phone call from Finland to Japan. Talking about outside the territory of the United States. It says directed at foreign individuals, individuals who are reasonably believed. And that, the answer to those questions, Your Honor, I mean, FISA says what it says. And Congress has recently amended that. You're the expert. Some of this stuff confuses me. I'm just trying to get some answers, that's all. And then I'll answer your question. I don't know, does it cover foreign to foreign? We're not sure. Foreign to U.S.? Your Honor, again, I point you to the recent definition, which exempts from the definition of electronic surveillance, surveillance that is directed at individuals reasonably believed to be foreign individuals. Invisuals recently what? Reasonably believed to be foreign. FISA ultimately was not concerned with that type of surveillance. And it's something that Congress has reaffirmed in the recent amendments. Plaintiffs in this case, of course, have abandoned their claim. As far as apply to U.S., someone in the United States to someone in the United States. Someone in New York calling someone in San Francisco. Your Honor, I think ordinarily it would. There's a very complicated definition of electronic surveillance. And I'm certainly not trying to be evasive on this, or trying to be difficult. But it's a very complicated technical definition of electronics and balance. And that complicates the litigation of questions. It can't be any more complicated than my phone bill. I certainly have to agree with you on that. I'm having trouble with that. This Protect America Act of 2007, what effect does that all have on this case? Well, Your Honor, plaintiffs have brought a FISA claim. So ultimately in the litigation of that claim, the court would have to view the recent amendments, particularly with respect to any prospective relief. But fundamentally, we don't think that any of their claims can be litigated without getting into matters protected by the State's secrets. The three matters that I've already mentioned, whether or not any relationship existed, whether or not any particular surveillance or activities are taking place, and whether or not, and this is a critical piece, which I hope Mr. Kellogg is going to talk about, whether or not any particular communications have been intercepted, which if you get beyond all the other issues that we've discussed, plaintiffs could not establish their standing in this case because they couldn't establish whether or not their own communications have been intercepted. The bottom line here is that once the executive declares that certain activity is a State's secret, that's the end of it. No cases, no litigation, absolute immunity, the King can do no wrong. It's about what it comes down to. No, Your Honor. First of all, as I explained, although the courts do give the utmost deference to the assertion of the privilege, that is not absolute deference, the court plays an important role. And second, as this court said in the Cossack case, although dismissal is a harsh remedy, it's the remedy in this context, which is for what the court called the greater public good. If I have any time remaining, I'd like to reserve the balance of my time for a rebuttal, unless the court has further questions. I guess my only question or comment on your final remark is that we have a denial here of broads, broad domestic surveillance. But if we didn't have a denial, and if the government were undertaking that, I imagine from your comments that your response would be we can't, no one could litigate that kind of an invasion because of the state secrets doctrine. Well, the Supreme Court has rejected the notion that the fact that plaintiffs are asserting constitutional rights means that the privilege can't apply. This court had a different view than the Tennis case. But I think my question calls for a simpler answer of yes or no. Is your answer that no, if there were in fact widespread domestic surveillance of American citizens without a warrant, there would be no judicial remedy to challenge that? Yes or no in your view? I would answer it this way, and I make it as direct as I can. If the courts looked at the in-camera submissions of the executive and concluded, agreed with the executive's submission that litigating the case could result and grave harm to the national security, the answer would be that action could not go forward. But ultimately, the court would have the role in making that determination. Even if the in-camera submission were a denial. Yes. Thank you, Your Honors. Thank you. AT&T. AT&T. Thank you, Judge Pregerson. I may please the court. Michael Kellogg on behalf of AT&T. I'd like to make three points today focused on the issue of plaintiffs' standing. And the first point is that the questions that the court would have to resolve in order to determine that the plaintiffs have standing are the very questions as to which the government has invoked the State Secrets Privilege. In other words, they would have to show not only that there is such a dragnet program, but that AT&T participated in it, and that their own individual communications were captured pursuant to that. But those precise questions, which are necessary to standing, are ones that the government invoking the State Secrets Privilege, according to proper procedures, have said cannot be litigated and cannot be resolved one way or another. AT&T is not allowed to put in any defense with respect to those questions. Evidence is not allowed to be presented on those questions. Under those circumstances, at this stage in the litigation, as you asked, Judge McEwen, courts have repeatedly said that once it becomes clear that the very questions at issue cannot be litigated, the case has to be dismissed. That's what this Court did in Casa, what the Supreme Court did in Tenet. It's what the Sixth Circuit did recently in the ACLU-VNSA case and what the Fourth Circuit did recently in El Massary. Do you have any other case that you can think of where a third party brings a challenge to a contract between the government and a company or third party, such as AT&T? Well, there's a number of cases involving third party suits against private individuals in which the government intervenes and invokes the state secrets privilege. But in those cases, is there a claim of a contractual relationship between that third party and the government? That's what I'm trying to assess is is there any other case other than Tenet and Totten from which we would draw any guidance on the contractual issue? Well, a couple of points on that. First of all, they are alleging here a relationship, an espionage relationship between the United States and AT&T, which raises a classic Tenet and Totten question. But the state secrets privilege is not limited to such questions. It extends far beyond the scope of individual espionage relationships into any discovery into methods, modes, and operations of clandestine government programs, which are alleged to be an issue here. But the President has said with respect to widespread domestic telecommunications interceptions, that's not happening. Why wouldn't, how would it impact any relationship the AT&T might have with the government or implicates the state secrets if that's the case? Because in order to litigate the question, it's going to be necessary to present evidence as to just what, if anything, AT&T is doing in cooperation with the NSA. The plaintiffs were not satisfied. Why would you have to do that? I mean, that's really kind of where we get into the rub. If, let's just assume that AT&T is doing something with the government that implicates intelligence gathering. So we'll put that over there. The question is, is AT&T doing something where there's no warrant required? Why would that require AT&T to put at issue the first agreement that we referenced? Because the government has said that whatever, if anything, AT&T is doing with the government is a state secret and we're not allowed to put in any evidence whatsoever on the question. And as a consequence, no evidence can come in as to whether the individual plaintiff's communications were ever intercepted and whether we played any role in that. Judge Hawkins, you asked about cases. Why can't the case go forward to allow evidence to present it? As it has been in a number of other cases where the questions at issue are peripheral to the state secrets. For example, in the United States, for you Reynolds, there was a plane crash. The plane had secret information on it. The court said, okay, you cabin that off and you can proceed to deal with the question of whether there was negligence involved and whether these plaintiffs were harmed. In In Ray Seal case, recently decided by the DC Circuit, the court said, the question at issue there, whether a State Department employee improperly surveilled another employee was not a state secret and that the state secret evidence was not entwined with the evidence that the plaintiffs would need to make their prima facie case. But here that is certainly not true because the court cannot make a resolution of the question, is AT&T participating? Are they not participating? Were plaintiffs' communications surveilled? Were they not surveilled? Because those are the very questions on which the court, the government, has evoked the state secret privilege. Let me just harken back to my lawyer days and I could see a very simple document request. It would run something like this. To AT&T produce any agreement, you know, document or otherwise, between AT&T and the government with respect to listening to domestic phone calls without court approval. Oh, it simply mimicked President Bush's words. And presumably, taking President Bush at his word, AT&T's response would be, no such document exists, correct? I assume that would be the response. I have no idea actually what is going on, but I assume that would be the response. Let's hope that. It's state secret. I have no idea what AT&T is. How would it be a state secret if there were no document that authorized AT&T to listen to domestic phone calls without court approval? Now, if there were such a document, then maybe you'd have to say state secret. But if there is no such document, and AT&T doesn't do anything more than President Bush says, wouldn't that be the end of it? And if the plaintiffs wanted more information, then maybe you'd get into the state secret. But why couldn't AT&T say whether it has this document in its possession, which is an agreement to listen without court approval? Because any sort of probing into what, if anything, AT&T is doing for the government has been designated as a state secret. Even if it doesn't exist? It's a state secret that it doesn't exist? As Mr. Gar said, even gaps in intelligence gathering can be state secrets. What the government is not doing can be a state secret. But President Bush said they're not doing it, so that can't be a state secret that they're not doing it if AT&T simply confirmed. It has no such agreement. I mean, why couldn't the litigation go at least that far and then leave to Judge Walker to determine, well, if that's the end of the road or not the end of the road? Well, I'm not sure how it could not be the end of the road, but plaintiffs clearly will indicate that it's not. Plaintiffs, if you saw their discovery request, which are in the record materials, the materials that they wanted go far beyond the scope of that. Indeed. Well, maybe they're not proper discovery requests. I'm just asking you, based on everything we have in our record, going back to this issue of how is it that the public is going to have some assurance on the record that this is not occurring without getting into what may or may not be occurring with AT&T on other fronts. Well, Your Honor, if there's a remand to say that a simple denial is sufficient to end the case, I believe Mr. Gar said that that would satisfy the government. I won't let him clarify that on rebuttal if he says so. Well, it might be a good PR move, huh? Sorry, Your Honor. It might be helpful in assuring the public that what is alleged in part in this complaint, widespread, drag net, domestic, interception of private telephone conversations is in fact not occurring. Well, the President has already issued a denial that that is occurring. Plaintiffs, obviously, are not satisfied with that. They've presented materials. No court in the land would be satisfied with a public statement by anyone, be it the President of the United States or the President of AT&T or the custodian of the air conditioner in that room on Folsom Street. What would be required would become some kind of affidavit, right? As I say, I leave it to the government whether they'd be satisfied with that approach. Certainly, AT&T would be very happy to have the case end on those terms. I would like to stress that the second point that I wanted to make, if I'm not quite sure how much time I actually had given the overrun, but that the plaintiffs here have abandoned Judge Walker's approach to this case. Judge Walker thought that the case could go on through a somewhat complicated series of reasoning dealing with the terrorist surveillance program, which the plaintiffs have abandoned on appeal. Their whole theory has to do now with the Klein and Marcus materials, which Judge Walker rightly said were insufficient to establish a prima facie case and that he would not rely upon. And at best, what those materials do is they speculate about what a certain configuration of equipment would be capable of doing, but they provide no indication as to what is actually happening in the so-called sealed room, what information, if any, is being turned over to the NSA as part of the alleged program. Let me ask you about this. This is kind of an odd case because it's a motion to dismiss with a record the size of this mystery room, I think. And so we're not just sitting here with this complaint on a motion to dismiss. Judge Walker found through stringing together various statements that ATT must be involved. Do we look at that conclusion on a de novo basis or on some other standard of review? I would note that the government also made a motion for summary judgment. Correct. But Judge Walker's decision was on the motion to dismiss and there is de novo review of a decision on a motion to dismiss. So where in your view did Judge Walker go wrong in coming to his conclusion about AT&T? Well, he speculated that if there were a large program going on that the government would need help from large telecommunications carriers that AT&T is the largest carrier that AT&T is a history of having government contracts and confidential relations with the government and therefore that it was reasonable to infer that possibly AT&T participated. Now, as I say, we obviously attacked that series of reasoning in our brief. As I say, the plaintiffs have not defended it. They have abandoned it on appeal and they have instead tried to rely on the Klein and Marcus materials, which Judge Walker did not do. Which Judge Walker did not do and which are clearly inadequate under Tenet V. Doe, the Supreme Court's decision, and under this Court's decision in Casa where there were also attempts to present affidavits or other evidence showing some source, showing that what is a secret is not actually a secret because there's some information out there. And what the Supreme Court made absolutely clear in Tenet V. Doe is that the mere fact that there's some information floating around there in the public domain does not mean that it is not a state secreted issue because there can be all sorts of small bits and pieces that are critical to the intelligence determination and that the director of intelligence deserves the utmost deference in that determination. Judge Walker, get into the state secret issue and any depth? Well, he did not discuss the sealed materials in any depth but my understanding is he did examine those materials with great care. He determined that the state secret privilege was properly invoked procedurally by both the director of national intelligence and the director of the NSA. His issue then was whether there were enough extraneous information out there to say that, well, maybe it's not a state secret after all. And dealing with a motion to dismiss doesn't take much to affirm or denial the motion to dismiss. Well, that's where the point I tried to make at the outset is so critical. It's because the very questions they would have to be resolved in order to establish that plaintiffs even have standing, Article III standing to bring this case are themselves been properly designated as state secrets which means that we can't litigate those questions, we can't provide any defense on them and the court cannot ultimately resolve those. The plaintiffs are clear in saying that in the AT&T case that they think they can prove their case without any of that. They do, relying on Collina Marcus which Judge Walker found insufficient which for the reasons we explain in our brief are insufficient. They had most established what a certain configuration of equipment might be capable of. If you read the Marcus Declaration with care he talks about capability at least 12 times in there and he concludes that with this configuration traffic what would have been available for interception that is not a conclusion that individual people's traffic was intercepted. Indeed he himself refutes the dragnet by saying well this configuration actually would not allow you to listen in non-ordinary telephone calls and it wouldn't allow any interception of traffic between AT&T customers. So their gaps even what he says might be possible under the configuration. Certainly there's no basis on which the plaintiffs would be able to establish standing under those circumstances or that AT&T would be able to litigate the question because our hands are completely tied here by the governments invoking. Well that'd be something Judge Walker will have to look into in the future I suppose. Well not under this court's precedence and Supreme Court precedence once the determination is made. And a final point I'd like to make if I may up concerning the records program is that the plaintiffs don't even pretend to have a prima facie case there. They don't pretend to have any legitimate evidence that a call records program. They cite a few stray newspaper reports and congressional statements but under well-established precedent none of that material is sufficient to abrogate the state secrets privilege and every judge to have considered the question has said this is a legitimate invocation to the state secret privilege. The Sixth Circuit recently dealt with the same issue and even the dissenting judge in that case said that the call records portion was properly dismissed at the outset for lack of standing. All right, let's do it. Thank you. Thank you. May it please the court. Robert Fram for the plaintiffs. Your Honors we believe that dismissal of this case is premature for two very simple reasons. First the statute. Congress established causes of action private rights of action directed against persons such as AT&T when they act under color of law and improperly conduct electronic surveillance. In plain English Congress established private rights of action when AT&T has a surveillance relationship with the government with the NSA. Now Congress was not unmindful of the need to protect national security. What I've said is it would be an extraordinary case for that mere relationship of a person acting under color of law and conducting surveillance to be able to. Let me ask you this. Had the government gone to the FISA court and gotten authorization or whatever is happening? Would you be here today? We would have a very different set of claims, Your Honor. It would have to do with whether they satisfied the substantive provisions of FISA. Let's assume they did. If they did the claims as we pled them would not be here today. How would you know that? Well, I mean that's a very interesting question. You have to talk practicalities here because if they'd gone to the FISA court and maybe they have, we don't know. But your answer doesn't really make sense to me in a practical consequence of saying, well, we'd have a different case. What would you know that would put you in a different position? Sometimes we find out things the FISA court does. Sometimes we don't. So I can't speculate as to those circumstances. But in terms of what we have here, as I said, Congress thought about how to handle the problem of national security in a claim against a party acting under color of law conducting electronic surveillance. This is not a one-sided statute or one-sided act on Congress's part. That is why it enacted Section 1806F so that the Attorney General, upon seeing a request for discovery implicating national security concerns, could go to the district court, obtain in-camera review, that's mandatory, does notwithstanding any other law, that would happen. And the district court then looks at the material in dispute. This would not be a hollow exercise in this case. While the AT&T and the government have sought to characterize the client evidence as being speculative, as being hearsay, as being a story about an air conditioner, if one actually fairly looks at the evidence itself rather than the characterization of the evidence, we see some very specific points, which we believe clearly establish our claims. There's a splitter cabinet on the seventh floor at 611 Folsom Street. Mr. Klein declares that under penalty of perjury. How does he know that? He knows that because it was his job, as he tells us in paragraph 15 of his declaration, to oversee the room where the splitter cabinet is installed. He tells us in paragraph 36 that he personally installed the circuits in the splitter cabinet. And what does it do? Mr. Klein tells us the splitter cabinet splits a fiber optic signal. And what happens next? He provides an exhibit, which is the exhibit is under seal, so I cannot quote from the exhibit, it's under seal because AT&T is contented as proprietary, but it's described in the Klein declaration, which is in the public record. And what the splitter cabinet does is it sends the light signal from the seventh floor on Folsom Street to the sixth floor, where the SG3, that stands for Study Group 3, secure room is located. How do we know that? He attaches exhibit C to his declaration. Exhibit C provides, and I can't quote it again, it's under seal, but it's described, the matter in which these connections are made. And if there's any question as to it, I would at least direct the court, it's a long document to page 122 in this excerpts of record as regards to see whether or not this is a credible statement. But one needn't take our word for it, that this isn't just hearsay or speculation. AT&T vigorously sought the return of the Klein materials unsuccessfully in the district court. They submitted a declaration, also still under seal, by one Mr. Russell. And I direct the court's attention to paragraphs 19 through 23 of the Russell Declaration, where he says, I cannot quote him, but where our brief describes, how he describes that this is about the facilities at issue. Again, there's a short declaration, I commend it for the court's own review. My point of describing the evidence is simply this. If one takes Congress's balanced scheme and says, look, when people engage in surveillance relationships with the government, presumptively there's a right of action. But if we're concerned about national security, 1806 F should apply. In this case, there's a lot to apply it to. There's a lot of real evidence. What is your response to the earlier argument that 1806 F is really applicable here by its terms in the way it reads with respect to an aggrieved person and putting this matter in evidence? The government says, makes the following arguments as the non-applicability of 1806 F. One is the definition of aggrieved person, and the other has to do with whether it only is triggered by persons who are defending against the use of information obtained through the surveillance. I understand their arguments. We believe neither makes sense in light of the statutory language first. The statutory language specifically is broader than individuals who have been provided with notice that the government is going to use the information or who are seeking motions to suppress. There is a third clause in 1806 F and that third clause in the disjunctive concerns any discovery motion whatsoever that is statute by its terms is expressly not limited to persons who are in a motion to suppress posture or dealing with the use of evidence against them. That's first. Second, aggrieved person. Where is that in 1806 F? If one looks at 1806 F and I believe it's in paragraph, I think in our statutory appendix I believe it's on 2A. Just tell me the surrounding language. Sure. We're dealing with different statutory appendix. Just tell me what the surrounding language is. Sure. So it's the language that I'm referring to is it says that in camera an ex-party review. After one gets there or to discover or obtain applications or orders of or other materials relating to electronic surveillance. That's the language that I'm quoting from. It says whenever any motion request is made by an aggrieved person pursuant to any other statute or rule of the United States or to discover or obtain applications or orders. But then it doesn't go on and making the determination. They go back to the aggrieved person situation. It has to be an aggrieved person. I agree with your honor on that. I'm simply making the point that it does not have to be a person who is defending against the use of evidence is a very broad grant. Very broad grant of review for all discovery motions. On the question of aggrieved person. When looks at the definition of aggrieved person in section 1801. What is clear there are two things. First it does not say an aggrieved person is a notified aggrieved person or a person who has already established that they are aggrieved. That is the same definition that appears in the private right of action under section 1810. In other words 1810 says you have a private right of action if you're an aggrieved person. An aggrieved person is a person who is by the definition merely subject to electronic surveillance. Not who's already established that they are subject to electronic surveillance. Not if they have been notified that they are subject to electronic surveillance. So what we have is a standard statutory provision providing. I kind of beg the question we're still back to the standing issue of whether they're aggrieved from a constitutional or prudential dimension or whether they're aggrieved pursuant to the statute and whether they can prove that without invoking the very state secret that is being argued about. I'd like to address that directly. The only point I was making here is that there's nothing in the statute saying you first have to prove that you were subject to surveillance before you can bring your claim and the government's reading of aggrieved person would have that effect. Now as to what it is we do need to show to answer your honor's question in terms of on standing. It's important again to look at what the claims under say FISA or Title III require. The gist of our claim, the gist of the evil here is in the improper giving of the communication. It's in the acquisition by a device is what the definition of electronic surveillance and that's an 1801 F sub paragraph 2 provides. It's the acquisition of a communication by a device without consent. No reference whatsoever to a human being reading it. No reference to an NSA technician analyzing it. No reference whatsoever to what goes on inside the SG3 secure room. Put in the concrete factual terms of our case we have completed privacy violations upon the handover of the copy of the internet traffic at the splitter cabinet and it's transferred to the SG3 secure room which room has access that is limited to NSA cleared personnel. And are you referring now to records communication or also to content? Well clearly as to the content as to the records we believe records are within the definition of content under the FISA statute which is not limited by its plain language to the verbal content and it can include information regarding the existence or identity. Let me just be clear is the room however one may or may not conceive it essential to your claim of widespread domestic surveillance. Yes the fact that there's a mass handover of a copy of communications to a room as to which access is limited to NSA cleared persons that is the gist of our of our drag net claim. What is not implicated in our drag net claim is what happens inside the room. So that goes then back to a topic I was discussing both with ATT and the government and that is President Bush's statement that there is not any domestic surveillance without judicial authority. If that were established with respect to the claim of widespread domestic surveillance or drag net what then what would be left of your claim? Well one has to be careful as the government is careful in reading their words and exactly what they're saying. My understanding is the president says that they're not trolling through the communications of ordinary Americans. I do not know what the government has ever said we are not obtaining a fiber optic split of all internet traffic. If they have information in other words that basically what Mr. Klein says and what his documents say are wrong then that is exactly the sort of thing that one would expect to see hashed out in an 1806 F procedure in front of Judge Walker. So it may or may not be that the declaration is provided that has been contemplated here that be provided by the president would be adequate. We didn't suggest that there would be need to be any kind of declaration by the president just to be clear on the record. But it's not clear what he would say and it wouldn't it wouldn't have to be the president it could be a member of the executive branch and I wouldn't expect it would be the president would you. I would agree unlikely it might be the Attorney General. But in any event you won't have to look carefully at the words of whoever said it on behalf of the administration and see whether or not it met the specific factual points that are in the record and by the way Judge Walker never said that he did not find the Klein evidence to lack credibility. He actually went out of his way to say he was not passing on this issue at the time. What we believe the statute calls for is exactly an evaluation of those points. And one final issue there's been a concern around the Klein evidence that might improperly be opening the door that anyone could come off the street and jeopardize the national security of the United States. I want to take a look at the narrowness of what we're proposing here. First this is evidence as to which the Assistant Attorney General expressly declined to assert the privilege. He did twice because Judge Walker asked him and he expressly declined to assert the privilege not only over the declarations but over the exhibits the very exhibits that AT&T fought ferociously to have returned because they thought they thought they were so valuable and proprietary. Well there is a difference of course between trade secret proprietary information and a state secret. We understand that but we think it's an odd circumstance for them to have it both ways and say this information is all hearsay and speculative and trivial and should be disregarded and at the same time say but of course it's incredibly proprietary important valuable when it comes to speak it's a trade secret. So you but the just of your claim then is that AT&T has a device by which it is acquiring data and or voice communications. Is that correct? Certainly data and we believe voice over IP it's internet traffic. B.O.I.P so yeah. So is there's a third kind of communication of course and that's just the standard telephony and that is with phone calls what we call phone calls. Do your allegations include a claim that there is either monitoring or acquisition of phone call content? They do your honor and as to that the client material speaks to internet traffic our point there is simply this the government has made a very broad contention that the entire subject matter of AT&T surveillance relationship with the NSA is a secret. We're saying we've proven it already we not only alleged it we proved it and so we're saying in this case where that we've gotten that far. What have you proved? What? You've proved that some NSI guy was supposed to show up in the room. I mean that's what the client and Marcus I mean you haven't proved one way or the other what is or is not the relationship between AT&T and the government have you? What we have what what if one looks at Klein in paragraph 17 and paragraph 14 he says the following that as regards the SG3 secure room first the ordinary technicians who worked in the building with him did not have access second that only field support specialists he designated number two he does not use his personal name had access subsequently field support specialist three when the first individual left third that those individuals only those were individuals who had clearances from the NSA now it may be he's wrong it may be that AT&T can come in or the government can come in with evidence to judge Walker and say that's unfortunately not true SG3 secure room is available to everyone or the full technician force that predicate is wrong they've done no such thing as far as we know I don't know everything that are in there confidential papers or but in the argument they've made on the public record that available to us they've never said any such thing they attack Klein's point out allegation on this specific issue as hearsay and is made on his knowledge well that he made on his knowledge that the only people allowed in the room after he works there every day does not strike us as an appropriately appropriate assertion you can be challenged but there's nothing speculative about it he's they say well he was told by another person some the field support person number one but let me just say that I'm just trying to narrow this let's say we take him at the word he there is a room people that work there have NSA clearance then there's another affidavit said that the equipment has certain capabilities correct for he actually does say that and that's in the documents as does Marcus that's all discussed however our point as regards electronic surveillance being defined as acquisition by a device without consent is that that violation is complete when the information is sent from the splitter cabinet in the seventh floor over to the SG three secure room which is a facility a room that NSA controls now without a warrant without any without any legal authorization when done without legal authorization correct your honor there's one aspect here well let me just speculate because that seems to be what we need to do when we don't have certain facts that anyone can talk about but what if there were a warrant but because of various other security regulations they couldn't tell you about that warrant or they couldn't tell you about some other authorization if they have a warrant or if they had a certification their defenses their statutory defenses certifications we believe all of that would be information they should properly put in front of judge Walker but it's very clear NSA a person with the NSA clearance is a person performing or assisting the performance of a government function in the record with the executive order it's it's it's one two nine six eight it's in the record I believe at SCR six nine seven and it's very clear it says that you only get those clearances if you have a need to know that's in section one point two and it says a need to know is defined in section one point one H as a person who is assist or performs a government function the violation is complete at the splitter cabinet when they take it if that's true then it wouldn't matter whether there is or is not an NSA person there has to be or you need that for your color of law if I'm acting under color of law your honor but there has to be some that nexus but if but if it's if the acquisition is complete why does why can you have say then just because you have a an NSA guy in there that it's occurring under color of law well the stat the claim is I understand what the claim is but I'm asking of the evidence not the claim sorry that well because you say you're saying that simply because there's an NSA person inside the room that that gives you the color of law we're saying that access to the room is restricted to persons with NSA clearance not merely that there happens to be an NSA person who floats through the room so there's a hand it's a handover of the fiber optic split to an NSA control to a room as which access is limited in that way much was made previously if I might turn to the Totten and tenant cases and just to briefly address that I believe one of the the governor AT&T said the tenant said the Totten was there's language there saying that this is not just a contract bar case because useful to look at the actual language of the opinion itself and looking at five four four us i believe page seven the issue there of course it was the claim brought by one of the spies it was not a third party but they brought claims based on due process and a stopper and it was in the context of that situation that the supreme court said it does not matter how the spies dress up their claims how the spies dress up their claims this is not about third parties we do not have a case where congress enacts a statute it's directed at persons who have a surveillance relationship it from congress provides for ways to consider how that could be a secret even though they created the private client causes of action where there's evidence to consider as to how to deal with it and the court says at this early juncture at the threshold we're going to stop the case on the contrary i would say the case that we suggest provides very very good guidance as to what to do here is the recent dc circuit case the inray sealed case that came out in july it's provided under rule 28 to the court some very interesting facts about the case put it on all fours with this case because it was not dealing with an 1806 review process it was just trying to figure out how do we deal with the state secret case where we have some secret and non-secret evidence and we've got the government arguing that this non-secret evidence is mere hearsay what do we do and what it found was as to one of the defendants is to remand it and to have the district court conduct what are called the tailored in camera review and to segregate the secret and the non-secret evidence so even if the court were to accept the government's arguments regarding the limits of 1806 f which we suggest would not be the right reading it doesn't matter the end of the day as the dc circuit pointed out it doesn't make sense to dismiss this case at the threshold when there's this amount of non-secret evidence that is credible on its terms that is documented that at&t has vouched for and as to which the government has itself expressly declined to assert the privilege that's a very narrow case this is not opening the floodgates to but so if you think of the sealed case out of the dc circuit the facts were were with a fair amount of precision you had an individual state department employee who claimed his communications were intercepted and he had the exact statements that he had made that were then transmitted and repeated of course all of that he knew it didn't was no state secret involved in that so you had a non-secret component that was essential both to his standing and to his prima facie case and you don't really have that with respect to your plaintiffs I mean they they really don't stand in the same position as this chargé d'affaires from the state department well in some says your honor we think our actual evidentiary situation is superior we have as the establishment of the existence of the splitter cabinet the making of the copy the routing of the copy and the sending it to the sg3 secure room where the axis is controlled we have sworn declaration on all points if you on looks at the dissent in in race sealed case is quite harsh in looking at the evidence that the plaintiff had there I thought they say it's a cable a table and some gossip or something and because there was a question about or the apparent lie of the of their adversary but the thought was how on such a flimsy batch of evidence not documents that their adversary tried to get obtained in return how on that sort of flimsy evidence could this go forward and not inevitably wind up with a risk to the disclosure of secure national security information that was the that was the counter argument in a sense let me just I just want to be clear on your point from before to make sure understood that central to your claim all of your claims then is the existence of the splitter cable and the existence of the room but not what goes on inside the room what that is correct what goes on inside the room is not central to our claims not Vegas quality about it in other words what goes on here stays here is that basically your argument it's a what once it's hand over to the NSA your honor that they've I you know toward to a room as to which access is restricted to persons who are assisting the NSA that is all we need we do not you're saying you don't care for purposes of your claim what the NSA does or doesn't do if they do anything with it it's just the fact that the NSA gives its imprimatur as color of law to the splitter cable that's your case in a nutshell yes your honor because what Congress did when it passed these statutes and established a protective perimeter for our privacy it looked at what had gone on previously in mass and improper mass interceptions in the Cold War and the Vietnam War and it wanted to have some set of rights that could be clearly and easily enforced without people having to dive into the specifics of who's a target or not it was said several times that we have to know if we're a target or not we don't we absolutely don't if if you were part of a mass dragnet and your email goes to fulsome street and that's a copy is made and give it to the NSA it does not have to mean that you were a target and there's no need here to disclose what who the NSA is targeting in many cases there's a concern in surveillance that the government should not disclose who is being targeted because it is a mosaic intelligence analysis the concern is that the enemies of this country will obtain valuable information if they know who is or is not being targeted we need no such information so the entire suggestion that that's a block on standing is simply not right I also confess to have lost track of the time and I'm also not sure frankly what the rules are regarding time let me just see if there's anything more great note we don't want you to leave out anything important thank you your honor there's one item that the government has not discussed yet but they may because it's in their briefs they often say they can't come in with a certification defense because it will give away the very secret I would simply commend the court to look at the actual language of the certification provision itself again here's where congress was trying to have a balanced scheme to allow these claims to go forward while protecting national security because in the certification provision itself it says that if a carrier obtained a valid legal certification this is under 2511 2a2 in our statutory appendix page 10a it says if they got the certification which requires them to disclose to make sure that they've identified the duration of the surveillance and the information being sought and the facilities used if they do all of that then they have an obligation to keep confidential the surveillance with but only with respect to what was certified so the suggestion that they can't litigate the certification and they will not have a defense and they can't use their defenses congress already thought of that congress already said we understand that you may get a certification and do all these things and it might have to be kept confidential if you do it of course if you're doing things that were not certified you're outside of the confidentiality cloak provided by congress and certainly there's no provision to say you don't even have to bother to get the certification just like you don't have to bother to get a warrant just assert the state secret privilege and you're done that seems to be completely contrary to the scheme congress was setting up both by setting up claims regarding persons under color of law providing for in-camera review providing for certifications providing for confidentiality of those certifications all within very specific procedures the government has followed that when we have a read when this case goes back to Judge Walker they should present it to him but thank you very much thank you your honor you haven't you rebuttle give you two minutes that enough for you two and a half thank you your honors um first well it was split the difference thank you your honors first because the point tends to get lost I wanted to stress the outset that at a minimum we think this court should reverse the district court decision allowing the communication records claim to go forward the district court acknowledged that claim the existence of that program or not was a state secret and permitting that claim to survive in this litigation was clear error secondly with respect to the room plaintiffs acknowledge first that the room the existence of the room is essential to the case and second that they don't know what's going on in that room there could be many things going on in that room to just to pick an obvious possibility there could be FISA court surveillance authorized going on in that room there could be communications law enforcement activities going on in that room there could be other activities plaintiffs own witness acknowledge that Mr. Marcus in his declaration he concludes however the AT&T would have no business justification for those purposes but whatever he's an expert in he's not an expert in AT&T's business practices third with respect to the notion of the declaration plaintiff and discussing the declaration with the court today said something very important I think you'd have to look at the words of the declaration very carefully and I think that that's just the beginning of what would happen as soon as there's the type of declaration that we've discussed there'd be litigation over the meaning of every single word and that would take you exactly back into what is going on or what is not going on in the room which is a matter squarely protected by the state secrets fourth with respect to the in resealed case you mentioned Judge McEwen you're right that case is completely different there was no claim in that case of a secret relationship with the government the privilege was asserted only over two documents and the director of the CIA himself in that case acknowledged the case could go forward with respect to some litigation and the court distinguished the relevant precedent in that case el-Masry saying that that case involved a challenge to the legality of the classified program that's just like this case with respect to the FISA argument again the argument asks this court to adopt the radical interpretation that FISA is a FOIA provision that allows anyone to come off the street and to sue to determine whether they are subject to FISA court surveillance FISA itself establishes a court which has classified proceedings the existence or not of FISA court surveillance is itself the classified fact there's nothing in the text of the provision or the purpose of the statute or any other case law that would support that radical interpretation of the statute Your Honor's foreign intelligence gathering is an increasingly important tool in assessing the nature of foreign threats and protecting the nation from foreign attack the district court decision in this case allows this action to proceed at the risk of disclosing the sources, methods or operational details of the nation's intelligence gathering capabilities because that decision not only poses an exceptional threat to the national security of the united states but directly contravenes the legal principles established by this court and the supreme court the district court's decision should be reversed in the case for manner with instructions to dismiss thank you very much thank you and this matter will stand submitted we're going to take a short break we'll give the audience a chance to stretch and you know whatever else you want to do but we'll be back don't go away all right