You've heard, "If I told you, I'd have to kill you." Facing a lawsuit by the Electronic Frontier Foundation, the federal government and AT&T recently tried a slight variation on that defense: "If we try this case, a terrorist might kill you.” It didn't work, at least for now.
The U.S. antiterrorism electronic surveillance program is so secret that there's no way to hold a fair trial evaluating its legality, the government argued in its May 13 motion to dismiss the case. But on Thursday, Judge Vaughn Walker rejected that argument and allowed the lawsuit against alleged warrantless wiretapping and telephone call record analysis to continue. Walker also rejected the argument made by AT&T that the company has immunity from such lawsuits because it was following orders from the federal government to assist in the collection of surveillance data.
While there are dozens of cases involving the U.S. government's secretive antiterrorism telephone monitoring activities, this appears to be the first significant court ruling involing the controversial program.
In the complex case, the Electronic Frontier Foundation sued AT&T for allegedly participating in government monitoring of U.S. citizens' phone calls. Thursday's ruling was equally complicated -- the judge cited precedents dating all the way back to Aaron Burr's treason case. Walker set aside several key issues because so much of the program remains shrouded in secrecy. But with a host of qualifications that the case might be dismissed at some future point, he rejected arguments made by both AT&T and the federal government that the case should be immediately thrown out.
Still the arguments raised by the government and AT&T in defense of the program -- and the judge's response to those arguments -- offer an intriguing glimpse of the legal battle ahead.
The U.S. wiretapping and telephone records analysis programs were disclosed by the New York Times and USA Today in news stories during the past eight months.
"The court's opinion makes clear that this is a case where the court just refused to duck," said EFF attorney Robert Fram. "It refused to dismiss the case at the outset because (that would require) sacrificing liberty with no enhancement of security."
AT&T did not immediately return phone calls requesting comment on the ruling.
In its motion to dismiss, the government essentially argued that so much of the antiterrorism data collection program is a privileged state secret that the case itself could not be argued -- and AT&T could not defend itself -- without jeopardizing national security. Because classified evidence could not be considered, that "effectively deprives AT&T of information necessary to raise valid defenses," the government said.
But Walker rejected that reasoning because so much of the program has already made it into the public sphere. Following the initial New York Times report last year, both President Bush and Attorney General Alberto Gonzales have confirmed parts of the program, dealing with monitoring of phone calls between alleged overseas terrorists and individuals in the U.S. That prevents the government from claiming state secret privilege, Walker said.
"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," he wrote. Elsewhere, he indicated that "it is important to note that even the state secrets privilege has its limits."
Walker also found fault with AT&T's basic defense. Federal law does allow citizens to sue telecommunications companies that improperly share details about their phone activities -- even if those details are shared with the government, he said. Telecom firms are immune from such lawsuits only if they receive a government "certification" authorizing them to conduct electronic surveillance.
But EFF argued that AT&T gathered information for the government -- and even allowed National Security Agency technicians to install special hardware at a San Francisco office -- on the basis of informal oral agreements.
The judge ruled that EFF might be able to prove at trial that no official certification had been received by AT&T. Further, since public statements from other telecommunications companies indicate they declined government requests for similar cooperation, AT&T would have trouble arguing that it was compelled to surrender the information. And finally, in perhaps the ruling's most bold statement, Walker said AT&T cannot hide behind what I might call "The Feds Made Me Do It" defense.
"The very action in question has previously been held unlawful,” Walker wrote. “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."
As that last sentence indicates, Walker did not find that the widely reported domestic dragnet actually existed; neither AT&T nor the federal government has confirmed the existence of the programs. The judge's statement merely indicates that if the program did exist, EFF lawyers could argue at trial that AT&T should have known such a program violated several U.S. federal laws, including the First and Fourth Amendments to the Constitution and the Electronic Communications Privacy Act.
"The government was asking for the judiciary to stay out and not enforce the laws Congress has written," said EFF staff attorney Kurt Opsahl. "If taken to the extreme it would allow the executive to do ... what it will without any judicial scrutiny. That is something antithetical to the separation of powers."
Though the case will go forward, it could hit a roadblock at any time. While Walker ruled the potential compromise of state secrets did not preclude the judicial branch from entertaining the case, a state secret defense may prevent most evidence from being admitted. The judge clearly signaled he would tread carefully in the discovery phase.
"The court also must take special care to honor the extraordinary security concerns raised by the government here," he said. He's so concerned about the issue that he suggested appointing a special adviser with high security clearance to advise the court on procedural issues.
With each piece of evidence subject to such procedural challenges, the EFF has its hands full going forward. The “If I let you see this evidence, a terrorist might kill you” argument will be hard to pierce.
