A federal judge said Friday that the Obama administration has pinned him in an inescapable, paradoxical situation when it comes to whether he should dismiss a lawsuit accusing the government of siphoning Americans' electronic communications from telecoms and funneling them to the National Security Agency without warrants.

During a three-hour and highly nuanced and esoteric hearing before U.S. District Judge Jeffrey White of San Francisco, Justice Department lawyers invoked the state secrets privilege and demanded White dismiss the case on grounds that it threatened to expose national-security secrets.

The state secrets doctrine was first recognized by the Supreme Court in the McCarthy era, and is asserted when the government claims litigation threatens national security. Judges routinely dismiss cases on that assertion alone.

U.S. District Judge Jeffrey White. Photo: Wikipedia

But Judge White, speaking hypothetically, suggested that the government privately submit to him proof that no eavesdropping had occurred. But Justice Department attorney Anthony Coppolino said that, too, was a state secret.

"Let's assume, hypothetically, the government come forth with information … that there was no surveillance," White said.

Coppolino, also speaking hypothetically, said it would reveal state secrets even if White declared there was no eavesdropping and dismissed the case.

"The court shouldn't proceed in a matter which would risk disclosure of that information," Coppolino said.

"It's a little bit of a catch-22," White replied. Moments later, he added: "That's, what you're saying, is a state secret?"

There's only one avenue for the judge to take, Coppolino said, which is to dismiss the lawsuit outright. Anything short of that, he said, "would impose a manifest injustice."

Richard Wiebe, a lawyer working with the Electronic Frontier Foundation, urged White to keep the lawsuit alive. He said federal wiretapping laws prohibit or "displace the state secrets privilege," a suggestion the judge and parties spent about 45 minutes arguing.

The case before Judge White is an EFF lawsuit that accuses the federal government of working with the nation's largest telecommunication companies to illegally funnel Americans' electronic communications to the National Security Agency without court warrants — a surveillance program the EFF said commenced under the George W. Bush administration following 9/11.

A different San Francisco federal judge, who is now retired, had tossed the case against the government but it was revived by the 9th U.S. Circuit Court of Appeals. U.S. District Judge Vaughn Walker had ruled that the lawsuit amounted to a "general grievance" from the public, and not an actionable claim. Walker sidestepped the government's state secrets assertion.

In reinstating the case, the appeals court said the EFF's claims "are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution." (.pdf)

The EFF's allegations are based in part on internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which route internet traffic to the NSA.

The lawsuit was filed immediately after President Bush signed legislation immunizing the telecommunication companies for their alleged participation in the program. The lawsuit before Judge White prompted the Obama administration to invoke the state secrets privilege – despite having announced he would limit his use of that doctrine at the beginning of his four-year term.

White did not rule on the case and gave no indication when he would.

At the outset of the hearing, however, he said: "The court is completely open as to what it might do at this point."