Judge Questions "State Secrets" Claim in AT&T Spy Case

The judge in the EFF's surveillance case against AT&T handed out a last-minute homework assignment Tuesday -- a list of 11 written questions (.pdf) that attorneys on all three sides of the case "should be prepared to address" by Friday morning's oral arguments.

The queries posed by US District judge Vaughn Walker all have to do with the government's assertion of the "state secrets privilege"; Walker appears surprisingly skeptical of the government's claim that the lawsuit must be obliterated to protect national security secrets from coming out in court.

Instead, the judge seems to be eyeing a middle ground that protects government secrets while allowing EFF to hold AT&T responsible for alleged illegal surveillance of its customers. Here are some highlights:

3. How can the court minimize the conflict between plaintiffs' right to litigate this case and the government's duty to protect state secrets? See Ellsberg v Mitchell, 709 F2d 51, 57 (DC Cir 1983) ("[T]he [state secret] privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter."). 4. If the court does not dismiss this case, which of plaintiffs' claims is least likely to require discovery of classified evidence?

5. If a warrant is not required for the government via AT&T to intercept plaintiffs' communications, how can the Fourth Amendment's reasonableness requirement be adjudicated without implicating state secrets?

6. How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T's alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?

Great questions. One option the judge is obviously mulling is to dismiss most of EFF's seven-count complaint under the state secrets privilege, while allowing one count to proceed: choosing the charge least likely to require classified information to prosecute or defend against. That could result in putting AT&T on trial for allegedly sending customer internet traffic to any third party -- without getting into who that third party might be.

The nuanced questioning is a very good sign for EFF. It suggests strongly that, in Walker's courtroom, the state secrets privilege may not be litigation H-bomb it's been in the past. More like a Neutron bomb that leaves a few things standing, pending appeal.