Federal judge won’t dismiss domestic-spying challenge

Friday, July 21, 2006

Editor’s note: This lawsuit has been consolidated with 16 other cases and is now part of In Re National Security Agency Telecommunications Records Litigation, No. 1791. The combined cases have been transferred to U.S. District Judge Vaughn Walker.

SAN FRANCISCO — A federal judge yesterday refused to dismiss a lawsuit challenging the Bush administration’s domestic-spying program, rejecting government claims that allowing the case to go forward could expose state secrets and jeopardize the war on terror.

U.S. District Judge Vaughn Walker said the warrantless eavesdropping has been so widely reported that there appears to be no danger of spilling secrets.

Dozens of lawsuits alleging that telecommunications companies and the government are illegally intercepting Americans’ communications without warrants have been filed. This is the first time a judge has ruled on the government’s claim of a “state-secrets privilege.”

“It might appear that none of the subject matter in this litigation could be considered a secret given that the alleged surveillance programs have been so widely reported in the media,” Walker said in his ruling in Hepting v. AT&T.

Walker also wrote that he did not see how allowing the lawsuit to continue could threaten national security.

“The compromise between liberty and security remains a difficult one,” Walker said. “But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”

And in declining to dismiss AT&T Inc. from the lawsuit, filed by the Electronic Frontier Foundation, Walker suggested the case had some merit. “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal,” he wrote.

A Justice Department spokesman said the administration was reviewing the ruling before making its next step.

The lawsuit challenges President Bush’s assertion that he can use his wartime powers to eavesdrop on Americans without a warrant. It accuses AT&T of illegally making communications on its networks available to the National Security Agency without warrants. By doing so, the lawsuit states, AT&T violated the plaintiffs’ “rights to speak and receive speech anonymously and associate privately under the First Amendment.”

AT&T, based in San Antonio, said in a statement that it values customers’ privacy, but also recognizes its “obligation to assist law enforcement.”

The government intervened in the case, telling Walker that Bush’s surveillance program, adopted after the Sept. 11 terror attacks, is “a secret of the highest order.”

The government argued that divulging any information about any alleged collusion between AT&T and the government to eavesdrop on Americans could subject AT&T employees and facilities to attack and would enable terrorists “to communicate more securely.”

The state-secrets defense, first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit, has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny.

The high court has upheld the legal tactic as recently as January, when it rejected an appeal from a former covert CIA officer who accused the agency of racial discrimination.

The president confirmed in December that the NSA has been conducting warrantless surveillance of calls and e-mails thought to involve al-Qaida terrorists if at least one of the parties to the communication is outside the United States.

The administration contends the program is legal and necessary, but has been mum on whether purely domestic calls and electronic communications are being monitored, as the lawsuit alleges.

A pending legislative compromise worked out by the White House and Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, would allow the president to submit the spy program to the Foreign Intelligence Surveillance Court for a one-time test of its constitutionality. That legislation, which has not been voted on, would remove the EFF case and others from the federal civil courts.

The EFF plans on asking Walker soon to rule on whether the president possesses wartime powers to authorize warrantless eavesdropping in the United States. The EFF alleges that San Antonio-based AT&T, which neither confirms nor denies the allegations, practices “wholesale surveillance” of its customers.

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