Feds Appeal State Secrets Decision.
The federal government asked an appeals court Monday to immediately hold a hearing on a lower court decision that allows an anti-eavesdropping lawsuit against AT&T to proceed, despite the government's arguments that the lawsuit would harm the national defense. In the request filed with the Ninth Circuit Court of Appeals, government lawyers argued that last week's landmark decision by Federal District Court Judge Vaughn Walker --a Republican appointee --usurped the executive branch's powers to wage war and keep the country safe. Walker refused to toss the Electronic Frontier Foundation lawsuit, saying that the existence of the program was no longer a secret since the Administration confirmed news reports that it was spying on some Americans' overseas communications without a warrant. That decision was one of the few times that a judge has not bowed down to the invocation of the state secrets privilege by the executive branch. While the privilege has a long history, the Bush Administration has used the legal equivalent of a "neutron bomb" widely to prevent information about secret CIA prisons, eavesdropping and FBI translation mistakes from being revealed in open court. Realizing that his decision would be controversial, Walker granted the government the right to appeal the non-dismissal immediately. The government reiterated to the Ninth Circuit that it believed any information about the program would harm national security. Adjudicating each of the plaintiffs'' claims would require confirmation or denial of the existence, scope, and potential targets of alleged intelligence activities, as well as AT&T's purported involvement in such activities. The declarations [ by the Director of National Intelligence and the head of the NSA] made clear that such information cannot be confirmed or denied without causing exceptionally grave damage to national security; indeed, the most basic factual allegation necessary for plaintiffs' case -- whether AT&T has engaged in certain conduct at the behest of the NSA -- can neither be confirmed nor denied by AT&T or the United States. The government also took issue with Judge Walker's reasoning that AT&T had to have been involved. The district court started with the fact that the President has announced the existence and rough contours of the Terrorist Surveillance Program. It then hypothesized - with no support in the record - that this program could not be undertaken without cooperation by members of the communications industry. The court next noted that AT&T is a large industry participant, cooperates with the Government when requested to do so through lawful means, and has stated that it engages in classified contracts. The court then put these points together in its own fashion, overrode the national security judgment of the Director of National Intelligence, and concluded that it should not be a state secret for AT&T to confirm through this litigation that, if true, it is indeed assisting the NSA in carrying out the Terrorist Surveillance Program. This determination by the district court represented a usurpation of the proper role of the Executive in the field of protection of information that is key to national defense. It is likely that the Ninth Circuit will grant the government's appeal and have a three judge panel hear the case. That decision could then be appealed either side to a full panel of appeals court judges and that decision could then be appealed to the Supreme Court. The EFF's suit relies heavily on evidence provided by former AT&T technician Mark Klein, who alleges he saw an NSA room in AT&T's San Francisco internet switching station. Klein provided documents that purportedly show how AT&T siphoned off traffic across its fiber-optic cables into that room. In May, Wired News published portions of those documents, which it acquired from a source not involved in the litigation. (Disclosure: Wired News has filed a motion to intervene in the case, asking the court to make public evidence, filed under seal, of AT&T's alleged wiretapping activities.) The case is Hepting vs. AT&T Corp.  [27B Stroke 6]
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