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Judge May Deny Bid to End NSA Suit

The federal government has claimed `state secrets privilege' in seeking the dismissal of a rights group's domestic spying case against AT&T.

June 22, 2006|Joseph Menn | Times Staff Writer

SAN FRANCISCO — A federal judge weighing one of the first lawsuits against the National Security Agency's domestic spying efforts has asked the government how the case should proceed if he refuses authorities' request to dismiss it.

The series of questions U.S. District Judge Vaughn Walker published Tuesday implied that he was reluctant to grant the government motion to end the case under the "state secrets privilege," a powerful argument that usually succeeds in quashing litigation.

"They certainly suggest that he has not been convinced by the government's argument and that he is considering denying the government's motion," said George Washington University law professor Jonathan Turley, who is involved in a separate case related to NSA activities.

Among other things, Walker asked the lawyers whether he should grant an interim request known as an interlocutory appeal "regardless how the court decides" on the motion to dismiss, which is scheduled for a hearing Friday.

That type of appeal would be relevant only if he declined to dismiss the case, said Shane Kadidal, an attorney with the Center for Constitutional Rights, a civil liberties group challenging the NSA elsewhere.

Walker also asked a series of questions about appointing an expert to advise him on the secrecy aspects of specific pieces of evidence, which would make sense only if the case continued.

Another civil liberties group, the Electronic Frontier Foundation, filed the suit against AT&T Corp. on behalf of Internet and phone users, accusing it of violating wiretap and other laws by sharing customer calling records with the NSA.

After the suit was filed, it was bolstered by the participation of former AT&T technician Mark Klein, who provided documents detailing a secured secret room where copies of all e-mails sent through the company's San Francisco hub were collected.

More than 20 suits now address one aspect or another of the NSA's domestic programs, but Walker could become the first judge to rule on the state secrets claim.

An appeal of that ruling is likely.

Also this week, the government asked a judicial panel to consolidate many of the cases in Washington.

Justice Department spokesman Charles Miller said he had no comment. "It's ongoing litigation," he said. "We will be in court on Friday, and we will argue our case."

AT&T spokesman Walt Sharp said the company wouldn't go beyond an earlier statement in which it said that it provides information to authorities "strictly within the law and under the most stringent conditions."

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