Justice Department Warns 9th Circuit on Classified Info

The Justice Department is warning a federal appeals court not to disclose classified information about the National Security Agency's domestic surveillance programs during upcoming arguments on a lawsuit challenging the NSA's effort. Three judges from the U.S. Court of Appeals for the Ninth Circuit are scheduled to hear arguments in Seattle on August 31 in Jewel v. National Security Agency, a series of cases arguing that the federal government's domestic surveillance programs violate the Constitution. On Wednesday, Justice Department Attorney H. Thomas Byron sent the court a letter (posted here) essentially warning the judges that since the argument is taking place in a courtroom open to the public the court should be careful not to discuss any national security secrets during the session "All classified information has been provided to the Court with the understanding that the secrecy of this information will be properly protected," Byron said. "We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information....If the Court has questions about the classified information in the record, we are prepared to address those questions in an appropriate secure environment with only the judges, cleared court personnel, and the attorneys for the government present, to ensure appropriate safeguards against disclosure." The Justice Department filed a classified brief in the case, as well as declarations that are not public and which plaintiffs' lawyers have not seen. The parties challenging the surveillance objected to the government's classified brief, but on Thursday the panel assigned to the case ruled, 2-1, that the secret brief would be accepted. Judge Harry Pregerson, one of the court's most vocal liberals, was the dissenter, though he did not explain his thinking. Judges Michael Hawkins and Margaret McKeown voted to accept the secret arguments from the government. (A copy of the court's order is posted here.) The lawsuits argue that the NSA's efforts to monitor e-mails and telephone calls in the U.S. violate the Fourth Amendment despite legislation Congress passed in 2008—with then-Sen. Barack Obama's vote—that sought to legalize a program President George W. Bush initiated without Congressional authority after the 9/11 attacks.