Published on Saturday, May 13, 2006 by the San Francisco Chronicle
US Moves in Secret to Quash Suit Against AT&T Privacy group says firm gave records to surveillance program
by Bob Egelko
The Bush administration is filing secret arguments with a federal judge to dismiss a lawsuit against AT&T over its alleged participation in the government's electronic surveillance program, a privacy-rights group said Friday.
We will be forced to argue against a secret brief that we will never see in total.
Kevin BankstonElectronic Frontier FoundationThe Electronic Frontier Foundation, which filed the suit in a San Francisco federal court in January, said Justice Department lawyers had notified it that the motion to dismiss and accompanying sworn statements were being filed under seal. Only an edited version will be made public.
The administration said last month that it would assert the "military and state secrets privilege'' and argue that allowing the case to proceed would jeopardize national security. Filing the arguments under seal is common in such cases and has been permitted by federal courts.
"We will be forced to argue against a secret brief that we will never see in total,'' said Kevin Bankston, a lawyer with the foundation.
The suit, filed on behalf of AT&T customers, accuses the company of giving the National Security Agency access to its voice and data network and records of customers' calls and e-mails without a search warrant or any evidence of wrongdoing. The suit seeks an order halting the company's actions and damages for all affected customers.
President Bush has said that shortly after the terrorist attacks of Sept. 11, 2001, he authorized the National Security Agency to intercept phone calls and e-mails between U.S. residents and terror suspects abroad without court approval. The Foreign Intelligence Surveillance Act of 1978 required the government to obtain a warrant from a court in secret session for such surveillance, but Bush maintains he has the constitutional authority to override the law.
The lawsuit says AT&T has allowed the federal agency to sift electronically through all its messages. On Thursday, USA Today reported that AT&T, Verizon and Bell South had turned over domestic telephone records to the National Security Agency.
Chief U.S. District Judge Vaughn Walker is scheduled to hear arguments Wednesday on AT&T's request to seal documents obtained by a former company technician allegedly describing company equipment in San Francisco capable of scanning huge amounts of data for use by the federal agency.
The government's authority to keep military secrets out of court was recognized by the Supreme Court in 1953. A 1998 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco said the potential disclosure of secret information may require dismissal of an entire lawsuit.
"This is the most powerful privilege that the government asserts,'' said Gregory Sisk, a law professor at the University of St. Thomas in Minnesota who has studied the issue. "The Supreme Court has said that a (judge) must give utmost deference to the government.''
Bankston, lawyer for the San Francisco privacy-rights group, said, "We believe that we could prove our case without revealing any information that would harm the national security.''
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