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NSA spying cases: interesting questions

Revelations of government eavesdropping during the war on terrorism on telephone calls and e-mails involving Americans continue to produce interesting developments in federal courts as judges explore the “state secrets privilege” defined by the Supreme Court in U.S. v. Reynolds (1953). This is another in a series of reports on those developments.

Chief U.S. District Judge Vaughn R. Walker of San Francisco appeared on Tuesday to be looking for ways to salvage some of the litigation over the National Security Agency’s terrorism surveillance program in the wake of the federal government’s move to completely scuttle all court cases on that issue by invoking the “states secret privilege.”

Walker told lawyers on both sides of the Hepting v. AT&T case pending in his Court to answer a series of questions on how he should proceed as he approaches the “state secrets” assertion. The Hepting case is docket 06-672; it is the furthest along of any of the nearly two dozen challenges to NSA surveillance. The Justice Department moved this week in the Judicial Panel on Multi-District Litigation to consolidate all such cases before a single U.S. District Court judge in Washington, D.C. The Department’s filings before the Panel can be found here. The Hepting case is one of the cases that would be consolidated for purposes of pre-trial proceedings.

The questions posed to counsel by Judge Walker can be found here

Among the fascinating inquiries he raised was how a judge could minimize the “conflict between the plaintiffs’ right to litigate this case and the government’s duty to protect state secrets?” He also wondered how “confirming or denying the existence of the alleged surveillance program at issue here, or AT&T’s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere.” Walker also sought a reaction to the idea, if the case stays alive, to appoint “an expert to advise the court on state secret assertions with respect to particular pieces of evidence.”

Judge Walker is scheduled to hold a hearing on the case, including an exploration of these issues, on Friday.

One or more of these cases appears destined for the Supreme Court, sooner rather than later.