Gov Argues Verizon Spy Suit Must Be Tossed Or Terrorists Will Win

The government told a federal judge on Friday that he must dismiss another set of lawsuits against a telecom – this time Verizon – for allegedly illegally helping the government spy on Americans because the lawsuits involve secrets that could put the nation at risk. The suit is one of five main anti-spying suits against telecoms now in front of a San Francisco judge, who last summer bucked similiar government arguments and allowed a case against AT&T's alleged spying to continue. The ruling in that case, known as Hepting vs. AT&T, is currently on appeal to the Ninth Circuit, and the government asked the judge to put a hold on the suits against the other telecoms until that appeal has been finished.

Judge Vaughn Walker wasn't buying that argument either, since the appeals could take years and end up in the Supreme Court. So in February, he issued a ruling forcing the government to stop stalling on the other cases. The government hoped to be able to keep the suits on different tracks, but Walker wants them all to catch up, so that whatever ruling comes down on the Hepting case can be applied to all the cases.

While that may sound a bit confusing, the government's filings were quite simple (motion, memo1, memo2). The government told the court it had no business allowing the case against Verizon/MCI to continue.

The government, including the head of the NSA and the Director of National Intelligence, says whether or not Verizon helped the NSA search through the emails and phone calls of Americans or turned over its entire phone record database – as reported by USA Today in 2006, is a state secret. The court, following the state secrets privilege, needs to defer to the executive branch, regardless of the allegations that the government has flagrantly and illegally been spying on American citizens' communications. Even confimring that the government doesn't spy on Americans helps the terrorists.

The Court is not permitted to substitute its judgment for the judgment of the most senior members of the intelligence community. As the Fourth Circuit recently held, deference to the Government’s judgment as to when confirmation or disclosure of information would reasonably endanger national security is appropriate "not only for constitutional reasons, but for practical ones: the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information would be well known to family, friends, and physicians).

Indeed, the court in Kasza found that the privilege could protect unclassified information that might, in combination with other facts, reveal classified information. See id. at 1168. Similarly, in Halkin II, the court upheld the Government’s state secrets privilege assertion over whether they had been subject to surveillance in the face of Plaintiffs’ contention that information placed in the public domain by former CIA officials in books reviewed in advance for classification by the CIA had disclosed particular facts about their allegations. See Halkin IL 690 F.2d at 994. Also, in the recent El-Masri decision, the Fourth Circuit upheld the Government’s state secrets privilege assertion as to facts concerning an alleged CIA rendition program despite the fact that the plaintiff would have been a witness to his alleged detention, interrogation, and conditions of confinement, and had spoken publicly about those issues.

Nolthing about the arguments are new. The government has been saying this since the case against AT&T was filed last January. But now you reading through the briefs, you can feel the Justice Department lawyers' frustration that Judge Walker hasn't bowed his knee to the government upon command. Now it feels like they are banging the table and yelling at him to kneel.