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Attorneys lock horns in phone privacy case

Lawyers argue that federal attempts to block investigations overstep security act.

June 22, 2007|Henry Weinstein | Times Staff Writer

SAN FRANCISCO — A Justice Department attorney sparred with lawyers for five states in federal court here Thursday over the Bush administration's attempt to block states from investigating whether phone companies illegally shared customer information with the National Security Agency.

The case stems from a newspaper report published last year alleging that AT&T and Verizon had cooperated with the government on its Terrorist Surveillance Program. That program has spawned several major court cases because of allegations that the U.S. engaged in secret wiretapping of individuals without seeking warrants.

Last year, five states -- Connecticut, Maine, Missouri, New Jersey and Vermont -- asked the telephone companies whether they had turned over customer records to the NSA, contending that doing so might have violated state privacy laws.

Although the requests were not identical, they all generated concern in the government, which has taken the position that any revelations about the wiretapping program could endanger national security.

During a 70-minute hearing Thursday, Deputy Assistant Atty. Gen. Carl J. Nichols told U.S. District Judge Vaughn R. Walker that the actions of the states clearly ran afoul of the federal government's blanket authority over foreign affairs, military and national security.

Nichols emphasized a section of the National Security Act of 1959 that states: "Nothing in this act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of the names, titles, salaries or number of persons employed by such agency."

He then read to the judge portions of the states' requests to the telephone companies referring directly to the NSA or asking for the name of any third party to whom they provided information.

Patrick DeAlmeida, New Jersey's assistant attorney general, countered that the state officials "are not interested in regulating intelligence gathering."

Rather, he said, they were attempting "to fulfill our state obligations to investigate violations of state law, protect the privacy rights of consumers" and regulate intrastate communications.

"The federal government wants to ... prevent state officials from investigating anything that touches on national security" in any way, DeAlmeida said.

He said it would be "unprecedented" for a court to issue a ruling that gave the federal government such sweeping authority based on the mere assertion, without any proof, that a state investigation could affect national security.

Walker then asked DeAlmeida about the section of the National Security Act that Nichols emphasized, noting that it was "very broad."

There is nothing in the law "to prevent a state official from investigating" a violation of state law, DeAlmeida responded.

He then asked, rhetorically: "Are state officials completely powerless to do anything merely because it is possible that it might touch on national security?"

The judge responded that the government's answer clearly was "yes" but gave no indication of how or when he would rule.


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