17 NSA spying cases sent to Judge Walker
The federal judge who so far has refused the Justice Department’s request to dismiss a significant test case on the federal “Terrorism Surveillance Program” has been assigned the task of deciding pre-trial issues in that case and 16 similar lawsuits. That was the decision of the federal Judicial Panel on Multi-District Litigation. In an order dated Wednesday and released Thursday, the panel found that the District Court of Chief Judge Vaughn R. Walker in San Francisco “is an appropriate transferee forum.” The transfer order, MDL 1791, In re National Security Agency Telecommunications Records Litigation, can be found here.
While the order directly involves 17 such lawsuits, the panel noted that there are 26 other cases pending in 18 federal districts. It said thsoe “will be treated as potential tag-along actions” to the consolidated group before Judge Walker. Under panel rules, a “tag-along” action is one that raises common issues of fact as in the transferred cases; those cases can be passed along to the chosen forum.
On July 20, in one of the cases involved in the new transfer order (Hepting v. AT&T Corp., docket 06-672), Judge Walker refused to dismiss that challenge to the NSA program. He found that the case could proceed, at least initially, without violating the government’s “state secrets privilege.” Judge Walker has stayed all proceedings in that case in the wake of an appeal to the Ninth Circuit Court by the Justice Department and AT&T Corp.
Three major telephone companies that have been sued, and the Justice Department, had asked the multi-district panel to send that case and 16 others to a U.S. District Court in Washington, D.C. Most of the individuals who had sued to challenge the legality of the NSA spying program, as it applies to telephone calls or e-mails involving users inside the U.S., wanted the cases to go to Judge Walker’s Court.
That is the appropriate court, the panel concluded in the order signed by Chairman William Terrell Hodges, because it is where the first of these 17 cases were filed and that case is “significantly more advanced” and is “pending before a judge already well versed in the issues presented by the litigation.”
The order said that the federal government itself had called for centralization of the 17 cases so that a single court “would be charged with the task of reviewing any classified informaiton that might need to be produced in connection with the plaintiffs’ claims and the government’s assertion of the state secrets defense.” It noted that Judge Walker had already worked out a procedure for reviewing classified information “that the government deems necessary to decide its state secret claim.”
Judge Hodges noted that none of the cases involved in this transfer had been filed in Washington, D.C., so sending the cases there as the government and the telephone companies asked would “require the very duplication and expansion of access to classified information that the government deems to be so perilous.”
Whether Judge Walker actually gets to sort out even the preliminaries of the NSA cases, however, depends on two things: first, the outcome of the expedited appeal the Justice Department and AT&T Corp. are seeking in the Ninth Circuit in an attempt to get the initial case dismissed; and, second, whether Congress takes action to shunt all of the cases on the NSA program to the secret court that sits inside the Justice Department and conducts its proceedings with only the federal government participating — the Foreign Intelligence Surveillance Court of Review. Legislation to accomplish that is stalled, at least for the time being, in the Senate Judiciary Committee, where its chief backer is the chairman, Republican Sen. Arlen Specter of Pennsylvania. If the cases stay in Judge Walker’s Court, by contrast, both sides will participate, and many of the proceedings will be in open court — although information claimed to be secret will be shielded from exposure.
The government’s plea to the Ninth Circuit is in Circuit docket 06-880109 and AT&T’s is docket 06-80110.
(Thanks to Howard Bashman of How Appealing blog for the alert to this development. Howard also has a link to the panel’s order; the link above is from the panel’s own website.)