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Government, AT&T Take a Hit From the EFF in Spy Suit

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The Electronic Frontier Foundation scored a huge victory today in a San Francisco court, where District Chief Judge Vaughn Walker denied the Governments motion to dismiss the case on the grounds that it would expose state secrets. Few people expected this to happen, as the judiciary has overwhelmingly yielded to the Government in virtually every case where the so-called privilege has been raised.
On May 13, 2006, the United States moved to intervene as a defendant and moved for dismissal or, alternatively, for summary judgment based on the state secrets privilege. Doc #124-1 (Gov MTD). The government supported its assertion of the state secrets privilege with public declarations from the Director of National Intelligence, John D Negroponte (Doc #124-2 (Negroponte Decl)), and the Director of the NSA, Keith B Alexander (Doc #124-3 (Alexander Decl), and encouraged the court to review additional classified submissions in camera and ex parte. The government also asserted two statutory privileges under 50 USC § 402 note and 50 USC § 403-1(i)(1).

Walker determined that the case could not proceed until he reviewed these documents himself. Often, when faced with a decision like this, the Government has simply refused to allow the judge access to the documents, and the case just fades away. Not this time.
After performing this review, the court heard oral argument on the motions to dismiss on June 23, 2006. For the reasons discussed herein, the court DENIES the government’s motion to dismiss and DENIES AT&T’s motion to dismiss.

While AT&T has steadfastly denied taking part in spying on behalf of the Government, they at the same time argued that even if they did, they might have gotten a 'certification' from the Government that allows them to do so with immunity. The problem with AT&T's argument is that they have refused to say whether they actually got such a certification or not, and based their motion to dismiss on the EFF's ability to discover such a document. And naturally, the Government's motion to dismiss is based on such a document never seeing the light of day...should it actually exist...which they won't say if it does.

The problem with the state secrets privilege is that it was not one the executive branch was ever intended to have -- it is not codified in law. It was not debated in the Congress, and was not voted upon by the peoples representatives. In my opinion, it is not just, and is in fact very dangerous. It gives the executive branch supreme power over all other branches in matters of law.

This court has finally recognized that not all suits must be dismissed en bloc. In this case specifically, the EFF was not even seeking classified documents from the Government at all. State secrets is the privilege by which the Government may withhold documents from discovery by which secrets critical to national security will be revealed, yet EFF is not requesting anything from the Government as far as I know. AT&T was trying to break the case by making the EFF try to find it, it if existed, and the Judge told AT&T to take a walk.

And yet whatever documents may or may not be in dispute (we will never be allowed to know) the Judge was allowed to see them, and guess what? We're all still here. The communists and terrorists and liberals haven't overrun our positions. Freedom and liberty is still hanging around; last I checked, the flags still wave proudly above our homes.
In sum, the court DENIES the government’s motion to dismiss, or in the alternative, for summary judgment on the basis of state secrets and DENIES AT&T’s motion to dismiss. As noted in section III, supra, the parties are ORDERED TO SHOW CAUSE in writing by July 31, 2006, why the court should not appoint an expert pursuant to FRE 706 to assist the court. The parties’ briefs should also address whether this action should be stayed pending an appeal pursuant to 28 USC § 1292(b).
The parties are also instructed to appear on August 8, 2006, at 2 PM, for a further case management conference.


The people shall have their day in court.

Vaughn Walker's order, EFF page.
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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.