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Fast-tracking the “state secrets” issue

This is another in a continuing series of reports on lower-court tests of Supreme Court precedent — here, the 1953 decision in U.S. v. Reynolds, spelling out the federal government’s authority to deflect public disclosure in court of national security secrets.

The Justice Department is accelerating its efforts to put a quick end to the widespread legal challenges to its “Terrorist Surveillance Program,” raising the prospect that the issue may be moving more rapidly toward a Supreme Court showdown in coming weeks, perhaps while the Court is in summer recess. A key issue developing is whether the lower courts must put off every aspect of those challenges until they resolve the government assertion of the “state secrets privilege” — an assertion that, if it works, could shut down the cases without a ruling on the Program’s legality.

Because these developments remain focused on the District Courts, action in the Supreme Court is probably not imminent. Either a grant or denial of the government’s effort to get the cases dismissed on privilege grounds, however, is likely to set off a rapid run to higher courts, including the Supreme Court.

In two separate District Courts, the Department in recent days has renewed, more vigorously, its reliance on the privilege to thwart nearly two dozen cases challenging aspects of the National Security Agency program of electronic wiretapping of telephone calls and e-mails for potential intelligence on terrorists. The eavesdropping sometimes reaches entirely domestic communications, and that aspect has provoked the lawsuits. Some of those cases challenge the actual eavesdropping itself, while others challenge the alleged turnover to the government of vast numbers of records of telephone companies about customers’ calling and e-mailing. Both aspects of the monitoring program became known publicly through reports in the news media.

A potentially tense confrontation between the government and a federal District judge is developing in Detroit, with a crucial hearing scheduled for next Monday in a case involving the constitutionality of the actual eavesdropping.. Upset by an order issued May 31 by U.S. District Judge Anna Diggs Taylor to go ahead with consideration of the legality question, the Department last Friday moved for “clalrification.” The motion, however, was in fact a firm demand that the judge treat the privilege claim as the threshold issue, leading to outright dismissal of the case in that Court. (That case is American Civil Liberties Union, et al., v. National Security Agency/Central Security Service, et al., docket 06-10204.) An earlier post on that case can be found here.

Judge Taylor had scheduled a separate hearing on the privilege/dismissal issue for July 10, nearly a month after the Monday hearing on the challengers’ motion for summary judgment — a pre-trial ruling on the merits. While the judge’s order could be read not to resolve the legality issue before getting to the privilege question, the Department said, it needed “clarification on this point.” The merits of the Program’s legality, it argued, cannot be resolved “before critical, threshold jurisdictional and evidentiary issues” are decided. . The challengers’ lawyers on Tuesday opposed the motion, arguing that the merits can be decided on pure legal questions, without having to explore any facts involving national secrets. On Wednesday, the Department countered that “facts protected by the state secrets privilege are necessary to adjudicate plaintiffs’ claims.” Moreover, it said, the government cannot defend itself without relying upon “classified and privileged facts.”

That case appears to have the most potential for moving the NSA challenges more rapidly toward higher courts.

But the government wants rapid action, too, on about 25 nearly identical cases, pending in more than a dozen U.S. District Courts (or soon to be transferred there from state courts), on its “state secrets” maneuver in response to challenges to the claimed cooperation of telephone companies in providing customer records to NSA for data-mining that may be related to terrorism investigations.

On Tuesday, the government asked U.S. District Judge Matthew Kennelly of Chicago to delay any action in one of those cases, until a decision can be made on combining all similar cases for pre-trial proceedings before one judge in one District Court. If all the cases are put together in one court, the Justice Department said, “the United States intends to assert the military and state secrets privilege in those actions and to seek their dismissal.”

The major telephone companies on May 24 asked the U.S. Judicial Panel on Multidistrict Litigation to consolidate 20 cases before one District judge, for pre-trial proceedings. That, of course, would include the privilege issue and the government’s attempt to obtain swift dismissal. The Panel has called for responses by June 19, and may hold a hearing in July. Since that request was made, more lawsuits have been filed.

One of the pending cases is Terkel, et a., v. AT&T, Inc. (docket 06-2837), pending in Judge Kennelly’s Court.. That lawsuit, brought by the ACLU’s Illinois affiliate, is one of two in Chicago against AT&T. So, AT&T moved on Monday for a stay pending the Judicial Panel’s action on the consolidation plea. It was AT&T’s stay request that the Justice Department joined in on Tuesday.