Can the federal government stop states from investigating whether telephone companies illegally provided customer information to the National Security Agency?
A federal judge in San Francisco will take up that issue today as the Justice Department and the phone companies attempt to block state investigations into the Bush administration's Terrorist Surveillance Program.
After published reports last year alleging that AT&T and Verizon cooperated with the government on the surveillance program, customers and the American Civil Liberties Union urged state officials to probe whether the firms had illegally shared call records with the government.
Verizon said it had not worked with the NSA. AT&T said it had always followed the law but would not comment on any dealings with the government.
After the companies declined to answer formal questions, officials from New Jersey, Missouri, Connecticut, Maine, and Vermont launched investigations.
Some of those states, citing state laws protecting consumer privacy, issued subpoenas to the companies.
Richard Blumenthal, Connecticut's attorney general, explained why his state jumped in: "We are seeking information vital to protecting our citizens and our consumers against potential unlawful disclosure of customer telephone records. We are not seeking operational details of an intelligence operation."
The Justice Department intervened, suing officials in the five states. The suits contended the probes were prohibited because the federal government has sole jurisdiction over national security, military affairs and the gathering of foreign intelligence.
Justice Department lawyers, led by Assistant Atty. Gen. Peter D. Keisler, also asked that the telecommunications companies be prevented from saying whether they had participated in government wiretapping or data mining. The government said officials could not even confirm or deny the existence of the NSA program "without causing exceptionally grave harm to national security."
The Maine attorney general's office countered that to "exercise their right to privacy, telephone subscribers must be able to limit the dissemination of their telephone numbers to persons of their choosing."
'Potential risk' cited
On Feb. 8, a federal judge in Maine said that the "potential risk" to national security was significant enough to bar the Maine Public Utilities Commission from compelling Verizon to disclose whether it had cooperated with the NSA's wiretapping and data mining program. Before Maine officials had a chance to appeal, all the states' cases were consolidated and transferred to San Francisco, along with several suits brought by private parties.
U.S. District Judge Vaughn R. Walker, who will be hearing the arguments today, was appointed by President George H.W. Bush in 1989 and has a reputation as a particularly independent jurist. Last July, he declined the government's request to dismiss a separate class-action suit filed by the Electronic Frontier Foundation alleging that AT&T permitted the NSA to monitor millions of phone calls and e-mails without a warrant. Walker, in his ruling, wrote that the surveillance program, which President Bush and Atty. Gen. Alberto R. Gonzales have discussed publicly, was hardly a secret.
"AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content," Walker said.
Attorneys for the states argue that their probes do not threaten national security. A brief by lawyer Peggy A. Whipple, representing the Missouri Public Service Commission, said the states' inquiries focused narrowly on whether the companies disclosed information in violation of state law, and if so, what exactly was disclosed. She said the states have not asked "for the fate of information after it was disclosed."
AT&T attorneys Marc Axelbaum and Bradford Berenson countered that the actions taken by state officials clearly tread in areas reserved for the federal government.
"The express purpose of their investigation is -- and its clear effect would be -- to determine whether AT&T participated in alleged counter-terrorism activities of the NSA and, if so, the details of that participation," the lawyers wrote in a June 1 brief.
The government's brief makes parallel arguments. "Revealing whether or not any of the carriers assists the NSA with specific intelligence activities would replace speculation with certainty for hostile foreign adversaries who are balancing the risk that a particular channel of communication may not be secure against the need to communicate efficiently," . Deputy Atty. Gen. Alexander Haas wrote, citing a declaration filed by Lt. Gen. Keith B. Alexander, director of the NSA.
Walker is expected to rule by the end of the year.