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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, July 20, 2006

Huge news - Judge refuses to dismiss NSA lawsuit

(updated below)

The Bush adminstration suffered an enormous defeat today, as a federal district court denied its motion to dismiss the lawsuit brought by the Electronic Frontier Foundation against AT&T, which alleges that the administration's NSA warrantless eavesdropping program (and AT&T's cooperation with it) is illegal. Most significantly, the district court, which is in the Northern District of California, rejected the administration's claim that allowing the litigation to proceed would jeopardize the disclosure of "state secrets," a doctrine which the administration has repeatedly exploited to prevent judicial review of its conduct. Traditionally, courts almost always defer to the executive's invocation of that claim and accept the President's claim that national security requires dismissal of the case. But this time, the court rejected that claim.

The court's decision is 72 pages long and is online here (.pdf). Underscoring how courts virtually always accept the government's claim of state secrets, the court began by discussing the long line of cases in which, in almost every instance, courts deferred to the Government's assertion that state secrets would be jeopardized by ongoing litigation. Indeed, the Ninth Circuit Court of Appeals -- the appellate court which is above this district court -- previously directed that "utmost deference" be given to the government's invocation of this claim. Dec. at p. 14.

Here, the Bush administration argued that vital state secrets would be disclosed even by virtue of AT&T's mere confirmation or denial of the existence of the warrantless eavesdropping program, as well as if they confirmed or denied that it has cooperated with that program. Plaintiffs' position was that the administration itself has already confirmed the existence of the program; that a former AT&T employee has already confirmed that AT&T has fully cooperated in allowing the administration full eavesdropping access without warrants; and that press accounts independently describe details of the program. As a result, argued plaintiff, the court can adjudicate its claims without the disclosure of any "state secrets."

The court first ruled that -- in order to determine whether the existence of the program was a "state secret" -- it would rely upon only the Bush administration's public statements, and not any statements from the press or former AT&T employees. Based solely on those statements from the administration itself, the court explained (Dec. at 34):

"the very subject matter of this action is hardly a secret. As described above, public disclosures by the government and AT&T indicate that A&T is assisting the government to implement some kind of surveillance program" . . . [and] "significant amounts of information about the government's monitoring of communication content and AT&T's intelligence relationship with the government are arleady non-classified on in the public record."

Based on this reasoning, the court rejected the Bush administration's argument that litigating the claims against AT&T would jeopardize state secrets, since the administration itself has already confirmed the existence of the NSA warrantless eavesdropping program.

Most critical of all was the court's ultimate reasoning, which, relying on the Supreme Court's ruling in Hamdi v. Rumsfeld, served as yet another reminder that the Bush administration's claims of unlimited presidential power have no place in our system of government (Dec. at 36):

"Even the state secrets privilege has its limit. 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. See Hamdi v. Rumsfeld, 542 US 507, 536 (2004) (plurality opinion) ("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").

To defer to a blanket assertion of secrecy here would be to abdiate 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."

The court not only denied the Bush administration's motion to dismiss, but also AT&T's motion to dismiss on the grounds that, among other things, the plaintiffs lack standing to bring the lawsuit. The court thus ordered that some discovery -- i.e., the exchange of information between the parties -- proceed.

There are a few caveats to note here. First, the court certified the decision for immediate appeal, which means the decision can and will be directly challenged in the Ninth Circuit Court of Appeals and, if the Bush administration loses again, could very likely end up in the Supreme Court. Second, the dreaded, pending Specter legislation contains a provision for all of the cases challenging the NSA program (including this one) to be consolidated (transferred) to the secret FISA court, which would remove jurisdiction altogether from this court or the Ninth Circuit. Third, a similar motion is pending in the Eastern District of Michigan in the case brought by the ACLU against the administration itself. The judge there has already indicated that she will not blindly defer to the administration, and this decision can only enhance the likelihood that she, too, will deny the administration's motion.

Those caveats to the side, the importance of this victory cannot be overstated. The Bush administration has been exploiting what was a rarely used doctrine to, in essence, immunize its conduct from judicial review of any kind. Because courts have been willing to assume in the past that the doctrine was invoked in good faith by the President, they have almost always deferred to it. But this court scrutinized the claim quite thoroughly, and expressed real skepticism over the administration's assertions that national security prevents any court from determining if the law is being violated as a result of warrantless eavesdropping.

Most importantly of all, the court re-affirmed one of the most basic and important principles of our system of government. That even with regard to national security, there is no such thing as a President who acts alone without interference from the other branches of government. Instead, quoting Hamdi: "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." That is the very opposite of the Yoo theory of executive power which has been inflicted on this country for the last five years.

UPDATE: The district court judge distinguished all of the other prior cases which accepted the government's claim of state secrets by reasoning as follows (Dec. at 33):

"[N]o case dismissed because its 'very subject matter' was a state secret involved ongoing, widespread violations of individual constitutional rights, as plaintiffs allege here. Indeed, most cases in which the 'very subject matter' was a state secret involved classified details about either a highly technical invention or a covert espionage relationship."

Because the claims in lawsuits such as this involve the alleged violations of constitutional rights on the part of countless Americans, the justification for refusing to allow the claim to proceed on the "state secrets" ground certainly does seem weaker. If accepted, the doctrine would not merely prevent adjudication of a single individual's specific claim, but would immunize the President from being held accountable for his conduct with regard to widespread constitutional violations and illegal behavior affecting countless Americans. Courts certainly should be more skeptical of assertions by the government in those circumstances, and this court seems to suggest exactly that.

UPDATE II: John Amato has obtained documents relevant to the controversy arising out of President Bush's refusal to provide classification clearances necessary for the DoJ investigation into whether its lawyers acted ethically with regard to the NSA program (as a result of his personal refusal to authorize such clearances, the investigation never occurred).

According to John, the documents he posted show that -- in rather stark contrast to the President's refusal to issue clearances to enable the DoJ lawyers to be investigated -- the clearances necessary to enable the criminal investigation into The New York Times and the leak itself were given almost immediately. The common theme among that behavior and the administration's exploitation of the "state secrets" doctrine is that the administration uses concepts of national security as a game, as a selective weapon, to promote its political objectives. That is likely the primary reason why courts have decided that far more skepticism is required when it comes to this administration's assertions than was warranted for any prior administration.

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