The courts and NSA snooping.

The law, lawyers, and the court.
July 21 2006 4:00 PM

The Judiciary Strikes Back

The government fails to kill off a court challenge to NSA snooping.

Illustration by Robert Neubecker. Click image to expand.

Until Thursday, the NSA wiretapping scandal had gone remarkably well for the Bush administration. Congress and the Federal Communications Commission opted not to investigate, and after some initial alarm, much of the public seemed untroubled as well. By confirming allegations that he had authorized eavesdropping within the United States, President Bush managed to turn the story into a tough-on-terrorism example and dare critics to explain just what it was about fighting terror that made them so uncomfortable. It was masterful politics.

But that all changed when a federal judge in San Francisco on Thursday issued a ruling on an obscure procedural point in a court case between the Electronic Frontier Foundation, a digital rights nonprofit, and AT&T. Judge Vaughn Walker rejected the government's claim that because of the doctrine of state secrets, traditionally used to prevent the introduction into court of specific evidence that might compromise national security, he should dismiss EFF's entire case against the phone company. It's almost unheard of for a judge to shoot down a state-secrets claim, and in that respect, Walker's decision represents a setback for the administration. But the Walker opinion signals something more significant, as well: a rejection of the Bush administration's vision of a wartime executive that can govern unchecked. The judiciary is striking back.

Here's the background for the EFF case. In January, an AT&T employee named Mark Klein walked into EFF's offices in San Francisco and said he had some information about the NSA. Klein explained that in 2002 an NSA agent had visited the telecommunications company "to interview a management-level technician for a special job." In 2003, a secret room was built at AT&T's Folsom Street facility in San Francisco and equipped with a Narus STA 6400, which is known to be used by government agencies for "traffic analysis" on intercepted communications. Klein furnished EFF lawyers with documents allegedly confirming that the secret room was used to tap into the fiber-optic cables through which AT&T routes its Worldnet service. Armed with the whistleblower and his evidence, EFF launched a class-action suit against the phone company in February.

AT&T moved to dismiss the case, arguing that because eavesdropping leaves no fingerprints, EFF's class members couldn't prove that they personally had been listened to. Before that challenge could be resolved, the Justice Department swooped in with another one, invoking the doctrine of state secrets, and urging Walker to throw out the case on those grounds.

Since its first modern articulation in a 1953 Supreme Court case, this doctrine has at times prevented the introduction in court of information that might reveal state secrets. For decades, the rule wasn't used all that frequently. But after 9/11, an increasingly secretive Bush administration brushed it off and started invoking it. A lot. The government asserted a state-secrets privilege roughly 55 times between 1953 and 9/11—and 23 times since. And Bush administration lawyers have taken to asking judges not just to withhold certain evidence, but to dismiss cases at their inception. For the government, the privilege is "like one of the magic rings from The Lord of the Rings," William Weaver, a law professor at the University of Texas at El Paso, told Wired. "You slip it on and you are invisible."

There is a precedent for killing cases in the cradle this way: a 1998 ruling by the 9th Circuit federal appeals court. The 9th Circuit said that a case can be dismissed on state-secrets grounds if a) the plaintiffs don't have enough nonclassified information to ever make their case; or b) the defendants aren't able to produce potentially exculpatory evidence because it's classified; or c) the "very subject matter of the action" is itself a secret. Administration lawyers argued to Judge Walker that the EFF-AT&T case satisfied all three criteria.

And they had evidence—secret evidence, naturally—to prove it. In an absurd bit of cloak-and-dagger theatrics, this evidence was reportedly placed in a bunker in Washington, D.C., awaiting Walker's decision to look at it, when it would be flown "under guard" to San Francisco. EFF's lawyers asked Walker not to view these materials, because if he did they would be at a disadvantage—unable to rebut evidence they could not see. But in June, Walker went ahead and bit the apple.

At this point, prospects looked bleak for EFF. Walker is conservative by reputation, and the government cited a string of cases in which other judges acquiesced to state-secrets claims. Moreover, in May, a federal judge in Alexandria, Va., had dismissed a lawsuit brought by Khaled el-Masri, who claimed to have been kidnapped and tortured as part of the United States' "extraordinary rendition" program. (The CIA later realized they had the wrong guy and let him go.) The judge in el-Masri's case reasoned, a la the 9th Circuit, that because the details of a secret government program represented the subject matter of the action, the case could not proceed.

So when Walker released his 72-page opinion yesterday, he was asserting the importance of judicial review in an area that had seemed off-limits. "[E]ven the state secrets privilege has its limits," he wrote. "While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. ... To defer to a blanket assertion of secrecy would be to abdicate that duty."

Walker pointed out the obvious: In its basic contours, the NSA program is no longer a secret. The president and attorney general have made extensive—though hardly exhaustive—statements about its goals and scope. "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 argues. "And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements." With his unapologetic "yeah, I did it," it was Bush himself who "opened the door for a judicial inquiry."

Of course, the ruling is by no means an unqualified victory for EFF. Walker has certified the state-secrets question for immediate appeal, so before the case can proceed, his ruling will be examined by the 9th Circuit—which recently held that the state-secrets privilege should receive "utmost deference." And even if the ruling survives that appeal, the Justice Department would likely go to the Supreme Court before allowing the case to proceed. Walker also noted that legislative developments could change the course of the litigation, a reference to Arlen Specter's proposed wiretapping bill, which would sweep EFF's case out of Walker's courtroom and into the Foreign Intelligence Surveillance court.

But Walker's ruling actually makes it less likely that Specter's bill will prevail. Specter's premise is that regular courts cannot handle these extremely secret and sensitive matters. Walker punctured that myth of secrecy in his observation that the administration has discussed the surveillance program at length, and in his argument that litigation touching on the basic facts of the program is unlikely to change the way a terrorist works. In a gesture of good faith, he has suggested appointing a special expert—someone with a top security clearance and intelligence experience—to assist him in evaluating what can and cannot be introduced in court.

The real significance of the case exceeds the NSA wiretapping story and the use of state secrets. Walker's opinion is a stirring defense of the role of the courts, even in times of war. Quoting the Supreme Court's decision in Hamdi v. Rumsfeld, he reminds us, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." The president and Congress seem to have forgotten that lately; Judge Walker has reminded them.