

While the same three 9th Circuit Appeals Court judges heard arguments in two different spying cases today, they seemed to be two entirely different sets of judges.

When listening to the government attempt to bury, on the grounds of national security, a lawsuit against AT&T for allegedly helping the government engage in a dragnet surveillance program aimed at Americans, the judges expressed dismay that the government and AT&T could not simply show documents proving the surveillance did not exist.

That case relies heavily on company documents provided to the Electronic Frontier Foundation by former AT&T technician Mark Klein. Large chunks of those documents were published by Wired News last year.

But in the second half of Wednesday's hearing, the judges hardly asked any questions of the government attorney. He argued that a case directly aimed at the government's admitted warrantless wiretapping of Americans' overseas phone calls had to be thrown out because the document the plaintiffs want to use to prove they were surveilled was "totally classified." That document was accidentally given to them as part of a proceeding to put an Oregon Islamic charity known as Al-Haramain on a terrorist watch list.

The attorney for Al-Haramain, Jon Eisenberg, impassionately pleaded that his case wouldn't put state secrets at risk, but the judges seemed immune to his pleas. Judge Margaret McKeown said Eisenberg's arguments that he should be able to rely on his memory of the document, even though a lower court said the document couldn't be used made her "fell like I'm Alice in Wonderland."

Many thought that the Al-Haramain plaintiffs, who look to be the only people in America who can prove they were surveilled without warrants by the government's so-called Terrorist Surveillance Program, would be able to clamber over the legal obstacles standing in the way of getting a court to rule on the legality of warrantless wiretapping.

Instead, the court looks likely to throw out the Al-Haramain challenge because the government says the alleged surveillance call log is too secret to be used in court. But at the same time, all three judges seemed to believe that the government could confirm or deny a secret intelligence relationship with the nation's largest telecom, without disclosing secrets to the world.

THREAT LEVEL's David Kravets wonders, after hearing arguments all day, whether the Bush Administration is still spying.

So seemingly, in the eyes of today's panel of judges, in the collision between secret documents and the state secrets privilege, "totally secret" documents are not allowed to play, but sort-of-secret documents – the AT&T documents – may be able to trump the power of kings to do as they will.