1115.org

AP, via The Kansas City Star:

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.

This is one of the rare occasions when a federal court has refused to accept the state secrets privilege defense:

The State Secrets Privilege is a series of American legal precedents allowing the federal government the ability to dismiss legal cases that it claims would threaten foreign policy, military intelligence or national security.

Since the Sept 11th attacks, it has been invoked several times to stay proceedings.

According to an unnamed study, it has been invoked 60 times since it was originally founded in the 1950s during the Cold War, and it was only denied by a judge on five occasions, causing its critics to claim that it is rarely challenged and represents a “free pass” for the federal government.

First the Supreme Court decision on the Hamdan case, and now this. Things certainly don’t look good for President Bush’s I-can-do-whatever-I-want approach to the Presidency. Since no one in the administration seems to have a sign on their desk saying “Enough is enough”, it looks like the federal courts have decided “The free pass stops here”.

In refusing to dismiss AT&T from the lawsuit, Judge Walker wrote:

“AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal”.

Maybe things don’t look so good for AT&T either.

The collaboration between AT&T and the NSA which is at the heart of this lawsuit is an entirely separate operation from the two headline grabbers – the warrrantless wiretapping program revealed last December and confirmed by the President, and the mega-database of domestic calling records – and it has received very little attention in the mainstream media or in Congress to date. Maybe that will now change, as the lawsuit progresses. (For a more detailed account of this AT&T-NSA operation, see Satan, & Carry The “T”.

The government has also invoked the state secrets privilege in two lawsuits filed in January in connection with the warrrantless wiretapping program, one by the ACLU in the Eastern District of Michigan (in Detroit) and one by the Center for Constitutional Rights in the Southern District of New York (in New York).

Here’s what John Dean wrote about the Detroit lawsuit on June 16:

But this time, the outcome (of invoking the “state secrets” privilege) may be very different. Because this is a case where the “state secrets” privilege plainly should not apply, and a case with a judge brave enough to rule that, in fact, it does not.

Indeed, if she so chooses, Judge Anna Diggs Taylor can do for America what the GOP-controlled Congress, and Republican-beholden federal judges, have thus far refused to do: She can require the Administration to comply with the law — and in the process, she can actually examine the validity of the government’s claim of “state secrets,” rather than merely buying into assertions that national security is involved. Since such claims have been persistently abused by prior presidents, this kind of examination is long overdue.

He goes on to certify Judge Taylor as an all-round good guy:

Unlike those judges who easily disposed of Edmonds, Arar and El-Masri (recent lawsuits where the government successfully sheltered behind the state secrets privilege), Judge Taylor plainly understands civil rights and liberties, as her biography well illustrates. She is a no-nonsense judge with a quarter century of experience on the federal bench. She has tossed lawyers out of her courtroom when they played delaying games in discovery (and she has been upheld by the Court of Appeals when doing so). She writes well-reasoned opinions that reveal deep sympathy for victims of civil liberties violations. And she certainly has no fear of being reversed by an increasingly conservative U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over her court.

In short, if ever there was a federal judge to stand up to the President of the United States to tell him he must obey the law, and to cut through the nonsense that typically surrounds the invocation of the “state secrets” privilege, it is Judge Anna Diggs Taylor.

Things really don’t look good for the President.

*** Update at 2:50 pm ***

Reuters:

U.S. director of intelligence John Negroponte told the court in a filing that disclosing the information in the case “could be expected to cause exceptionally grave damage to the national security of the United States.”
[...]
“The very subject matter of this action is hardly a secret,” the U.S. District Court for Northern California judge wrote. “Public disclosures by the government and AT&T indicate that AT&T is assisting the government to implement some kind of surveillance program.”
[...]
The judge cited what public officials, including Bush, and the media have already said in public about the eavesdropping program.

“If the government’s public disclosures have been truthful, revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security,” Vaughn wrote.

Is Judge Walker having fun or what? (Vaughn is his first name; apparently Reuters knows him personally.) First he clearly said “Bulls***” to Negroponte. And then he allowed himself a nice little dig at the government.