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Judge rebuffs government on NSA spying

Impact of Supreme Court rulings on later cases — a continuing series.
Precedent at issue: U.S. v. Reynolds, 1953, on the “state secrets privilege”.

U.S. Distrct Judge Vaughn R. Walker in San Francisco rejected on Thursday the government’s plea to dismiss outright a lawsuit challenging the legality of the “Terrorist Surveillance Program,” the widespread monitoring of telephone calls and e-mails that has sometimes involved individuals inside the U.S. The judge, referring to the program as an “alleged domestic dragnet,” found that the case could proceed, at least initially, without violating the government’s “state secrets privilege.” The 72-page opinion in the case of Hepting, et al., v. AT&T Corporation, (docket 06-672) can be found here.

This marked the first time that any federal court had ruled on the Bush Administration’s claim that the need to protect the highly classified nature of the surveillance program required that a court challenge be dismissed without going any further. The government has made similar demands in other cases around the country that seek to test the National Security Agency spying program.

“While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it,” the judge wrote. (At that point, he inserted in his opinion a quotaton from the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld saying “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

The judge went on: “To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”

Whether Judge Walker’s ruling stands may depend on a number of other potential developments. He certified the case for an immediate appeal to the Ninth Circuit. In addition, Congress and the Bush Administration are currently discussing potential legislation that would move all of the challenges to the NSA spying program into the secret Foreign Intelligence Surveillance Court of Review. In addition, the federal court panel that holds the power to assign a number of related cases to a single U.S. District Court for at least some proceedings is to hold a hearing on July 27 in Chicago to decide whether to send many if not all of the pending cases to a District Court in Washington, D.C.

The Hepting case technically could now proceed to at least some intiial phases of discovering evidence. The judge told both sides in the case to file arguments by July 31 on why he should not appoint an expert to assist in dealing with secret materials. In addition, he said, the parties should discuss whether his ruling should be stayed pending an appeal. He certified the case for immediate appeal to the Ninth Circuit.

Besides refusing to dismiss the case at the government’s request, Walker also declined to dimiss the case against AT&T Corp. and its holding company, AT&T. The lawsuit contends that those two entities have been collaborating with the NSA in the surveillance program. It claims a variety of constitutional and statutory violations. It seeks money damages, punitive damages and a surrender of any profits made by AT&T on the program, and asks for restitution of telephone charges to customers.

AT&T asked to have the case dismissed on grounds that the individuals who sued did not have standing, and claimed a variety of forms of immunity. The federal government moved into the case on May 13, asking to intervene and moving for dismissal or for summary judgment immediately on the “state secrets privilege.” On Thursday, the judge rejected most of AT&T’s dismissal arguments, and rejected — for now — the “state secrets” claim.

To the government’s argument that dismissal was required because “the very subject matter” of the lawsuit is a state secret, Walker said that no prior case dismissed on that ground “involved ongoing, widespread violations of individual constitutional rights, as plaintiffs allege here….The very subject matter of this action is hardly a secret…Public disclosures by the government and AT&T indicate that AT&T is assisting the government to implement some kind of surveillance program.”

This case, he added, “focuses only on whether AT&T intercepted and disclosed communications or communication records to the government.”

Walker also rejected government claims that the case had to be dismissed now because the assertion of the state secrets privilege would bar evidence that the challengers would need to win thier case, or that AT&T would need to defend itself against the lawsuit. “It would be premature to decide these issues at this time,” he found. The case, he said, should “proceed to discovery suffiicently to assess the state secrets privilege in light of the facts. The government has not shown why that should not be the course of this litigation.” In addition, the judge rejected statutory privilege claims asserted by the government, apart from the “state secrets” privilege.

The judge also found that it was not a secret whether AT&T had received a government certificate authorizing warrantless surveillance — a certificate that would insulate it from legal blame. So, he said, AT&T could make a defense based on such a certificate.

In another part of the ruling that could prove helpful to AT&T, Walker said that, for the time being, he would not allow any discovery to go forward on whether the telephone company had handed over customers’ telephone and e-mail records — a claim separate from its role in the sweeping eavesdropping of those communications. He said he might revisit that issue later, however.

Walker rejected AT&T’s claim that it was acting as an arm of the government for any role in played in the eavesdropping, and thus had “qualified immunity” to the lawsuit. “No firmly rooted common law immunity exists for telecommunications providers assisting the government,” he said.