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The day before five phone companies were to answer Zulima Farber’s subpoena over whether they gave caller information to the National Security Agency without a court order, she got a response – but it was hardly the one she had sought. The state attorney general found herself a defendant in a suit by the federal government, alleging that her inquiry threatened national security and was barred by the state secrets privilege. The government, in United States v. Farber, 06-CV-2683, filed in Trenton on June 14, asks for a declaration that the state may not enforce the subpoenas and the companies may not comply with them. The suit claims that under the U.S. Constitution’s Supremacy Clause, any attempt to obtain or disclose the records is pre-empted by the federal government’s “exclusive control over foreign intelligence gathering activities, national security, the conduct of foreign affairs, and the conduct of military affairs.” That control is manifested in statutes like the Intelligence Reform and Terrorism Act of 2004, in executive orders that govern how national security information is handled and in the government’s absolute privilege to protect military and state secrets from disclosure, the complaint says. The complaint is backed by declarations from NSA Director Keith Alexander and Director of National Intelligence John Negroponte. They describe a Terrorist Surveillance Program, authorized by the president after the Sept. 11 attacks, involving NSA’s collection of “one-end foreign communications where one party is associated with . . . al Qaeda” and state that providing greater detail about the program would disclose classified intelligence. Named as defendants besides Farber are Deputy Attorney General Cathleen O’Donnell, Consumer Affairs Director Kimberly Ricketts and the phone carriers Farber subpoenaed – AT&T Corp., Verizon Communications, Cingular Wireless, Sprint Nextel Corp. and Qwest Communications International. Farber says she was not surprised by the suit, since the government has intervened in civil suits filed against the phone companies since December, when The New York Times made public a warrantless eavesdropping program later acknowledged by the White House and similar to the one described in the declarations. She says she is not backing down and plans to file an answer by July 5. The subpoenas, issued under the state’s consumer fraud law and signed by O’Donnell, were sent out on May 17. That was six days after USA Today reported that the NSA has compiled a database of U.S. phone calls using records handed over by AT&T, Verizon and BellSouth. The program described in the article is not limited to overseas calls, in contrast to the one described in the Alexander and Negroponte declarations. It was the USA Today article that prompted Farber’s action, says her spokesman, David Wald. “The question we had was whether consumers and individuals’ privacy rights were violated by handing out private information without a warrant or a court order.” Says Farber: “It’s my job to protect those rights.” The subpoenas, which remain unanswered, seek documents containing information about what types of landline or wireless call data were given to the NSA; who handed it over; the basis for doing so; whose information was disclosed; and whether the companies were paid or promised anything in return, among other things. The request is limited to customers with New Jersey addresses or telephone numbers. A letter accompanying the suit asks Farber to withdraw the subpoenas in the interest of national security. It also states that New Jersey state officials have not been authorized to receive classified, foreign intelligence information. Yet Farber says that she and the Director of New Jersey’s Office of Homeland Security and Preparedness, Richard Ca�as, recently received the highest level of national security clearance. Gov. Jon Corzine already has such a clearance through his former position as a U.S. senator. Farber suggests that one possible course of action for U.S. District Judge Stanley Chesler, to whom the case is assigned, would be to allow Farber and other officials with similar clearance to review any classified materials. New Jersey stands alone New Jersey appears to be the only state government to act on the alleged spying, though private actions against the government and the phone companies have been filed. One case is Chulsky v. Cellco, 06-CV-2350, filed in Middlesex County Superior Court on May 30 but removed to federal court six days later on diversity and federal question jurisdiction. Verizon contends that the case requires resolution of federal law issues and that federal statutes, such as the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act, pre-empt state statutory claims based on the Consumer Fraud and Wiretapping and Electronic Surveillance Control Acts and common law claims like invasion of privacy and breach of contract. Plaintiffs’ lawyer Christopher Placitella, of Red Bank’s Cohen, Placitella & Roth, says he plans to move for a remand to state court. Two Princeton lawyers, Bruce Afran and Carl Mayer, filed a pair of federal class actions on May 12 in the Southern District of New York on behalf of individual phone customers and businesses who fear Verizon, AT&T and BellSouth gave the NSA information about their phone use. As originally filed, the individual class action, Mayer v. Verizon, 06-3650, had two plaintiffs – Afran and Mayer – and three defendants – Verizon, the NSA and President George Bush. It asked for $5 billion in damages based on Verizon’s estimated 50 million customers and the $1,000 per violation recoverable under the Telecommunications Act. Afran and Mayer filed an amended complaint on June 8 with more plaintiffs – there are now about 170, sans the lawyers – and additional defendants, AT&T and BellSouth. There are also new allegations, about a program code-named Pioneer-Groundbreaker under which AT&T built a data center for the NSA so it could monitor every telephone call, fax and Internet communication that travels through AT&T’s networks, which also are used by other phone companies. The complaint alleges counsel reviewed AT&T records that show the program was underway by Feb. 1, 2001. The case has been stayed while the federal Multi-District Litigation Panel decides whether to consolidate pending federal cases in a single district. Last week, AT&T announced a revised privacy policy stating that its phone records are business records it may share with government and law enforcement. According to a statement from AT&T spokesman Walt Sharp last Thursday, “If and when AT&T is asked by government agencies for help, we do so strictly within the law and under the most stringent conditions. Beyond that, we can’t comment on matters of national security.” Verizon says it “cannot and will not confirm or deny whether it has any relationship to the classified NSA program” but denies providing customer records or call data. The company also declines to comment on the subpoenas. The Department of Justice press office did not respond to a request for comment. Open questions Though federal pre-emption is a tough opponent, the case is not a slam-dunk for the government, some analysts say. Louis Fisher, a senior specialist in separation of powers at the Congressional Research Service of the Library of Congress, says state attorneys general have a duty to uphold their own state constitution and laws. “The burden is on the national government to show why its rights are superior to the state’s,” he says. “The supremacy clause doesn’t bar the New Jersey attorney general from investigating violations of New Jersey law,” agrees Neil Kinkopf, a Georgia State University constitutional law professor who worked in the Justice Department’s Office of Legal Counsel from 1993 to 1997. In addition, Kinkopf calls the government’s case “an extravagant overreading of the state secrets privilege.” “Judges should not defer to one of the interested parties to characterize what is and is not a secret,” but should verify it by examining the documents in chambers, he says. To accept assertions of privilege at face value “would make a sham out of a courtroom”

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