State Secrets Privilege Wont Fly On ATT/NSA Case, Judge Rules

The government's attempted use of the state secrets privilege has been rejected in the first civil challenge to the NSA extra-legal warrantless eavesdropping program.

In a landmark ruling Thursday, a federal judge forcefully refused to dismiss a civil liberties group's lawsuit against AT&T for its alleged complicity in widespread warrantless government surveillance, despite the government's argument that the suit could reveal state secrets -- a rarely used claim that nearly always terminates a lawsuit.

In a 72-page written ruling (.pdf), U.S. District Court Chief Judge Vaughn Walker rejected the government's argument that merely allowing the case to proceed would cause critical harm to U.S. national security.

The decision marks a significant victory for the Electronic Frontier Foundation, and puts a rare limitation on the reach of the president's "state secrets privilege" to sweep alleged illegal government activities under the cloak of national security. (...)

"Dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security," Walker wrote. (...)

Under Thursday's ruling, the lawsuit will continue, allowing the San Francisco-based EFF to begin obtaining documents through discovery from AT&T.

In a legally unprecedented move, the judge also wants to appoint an outside expert with a high-level clearance who can review such evidence to evaluate whether its release would compromise national security.

Walker also denied AT&T's motions to dismiss the case on the grounds that the plaintiffs can't prove they were monitored by the program, and that the company can't be sued for helping the government in good faith. (...)

In addition to denying the government's motion to dismiss, Walker's decision also allows AT&T to reveal whether or not the U.S. attorney general provided the company with a letter directing it to cooperate in wiretapping its customers, which could provide the company with a defense against the EFF's lawsuit under federal wiretapping law.

"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," Walker wrote. "And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements." (...)

Recognizing that his ruling would be controversial, the judge is allowing both AT&T and the government to immediately appeal his ruling to the 9th U.S. Circuit Court of Appeals.

The case is Hepting v. AT&T Corp.