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Date: Thu, 20 Jul 2006 15:56:51 -0400
To: Philodox Clips List
From: "R.A. Hettinga"
Subject: [Clips] Judge rules against government in spying lawsuit
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http://sfgate.com/cgi-bin/article.cgi?file=/n/a/2006/07/20/state/n120253D53.DTL&type=printable
Judge rules against government in spying lawsuit
- By DAVID KRAVETS, AP Legal Affairs Writer
Thursday, July 20, 2006
(07-20) 12:51 PDT San Francisco (AP) --
A federal judge on Thursday rejected a government bid to dismiss a lawsuit
challenging the Bush administration's domestic spying program, saying it
failed to qualify as a "state secret" because it had been widely reported.
U.S. District Judge Vaughn Walker said a case could go forward over AT&T's
alleged involvement in President Bush's surveillance program adopted after
the Sept. 11 terror attacks.
"The compromise between liberty and security remains a difficult one,"
Walker wrote in his ruling. "But dismissing this case at the outset would
sacrifice liberty for no apparent enhancement of security."
The government invoked the so-called "state secrets privilege" and said the
case by Electronic Frontier Foundation should be thrown out because it
threatens to reveal state secrets and jeopardize the war on terror.
"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.
The case is one of dozens nationwide against telecoms and the government
alleging they are illegally intercepting Americans' electronic
communications without warrants. Thursday's decision was the first to
address the state secrets defense.
The Justice Department did not immediately return calls seeking comment.
The lawsuit by the privacy group tests the constitutionality of Bush's
asserted wartime powers to eavesdrop on Americans without warrants. The
government intervened and said that divulging information about any alleged
collusion between AT&T and the government could subject AT&T employees and
facilities to attack and would enable terrorists "to communicate more
securely."
The legal tactic of state secrets privilege, 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 scrutiny by the courts, from espionage cases and patent disputes to
routine employment discrimination lawsuits.
The president confirmed in December that the National Security Agency 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 is mum on whether purely domestic calls and electronic
communications are being monitored as the suit alleges.
The suit was brought by EFF on behalf of customers of San Antonio-based
AT&T. The group accuses the telecom of illegally cooperating with the NSA
to make communications on AT&T networks available to the spy agency without
warrants.
The EFF asked Judge Walker to rule on whether the president possesses
wartime powers to authorize warrantless eavesdropping in the United States
without publicly disclosing any classified or sensitive material. The EFF
charged that AT&T, which neither confirms nor denies the allegations,
practices "wholesale surveillance" of its customers.
Walker also declined to dismiss AT&T from the case.
"AT&T cannot seriously contend that a reasonable entity in its position
could have believed that the alleged domestic dragnet was legal," Walker
wrote.
The U.S. Supreme Court upheld the state secrets defense as recently as
January, when it rejected an appeal from a former covert CIA officer who
accused the agency of racial discrimination. And in May, citing the state
secrets defense, the government urged a federal judge in Virginia to block
a lawsuit by a German national who says he was illegally held and tortured
in a CIA-run prison in Afghanistan for four months.
The Supreme Court first recognized the state secrets doctrine in 1953, when
it dismissed a lawsuit against the government brought by family members of
people killed in a plane wreck while testing secret electronic surveillance
equipment.
The case is Hepting v. AT&T Inc., 06-0672.
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-----------------
R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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--
-----------------
R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'