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U.S. District Judge Vaughn Walker swept aside federal government claims that a National Security Agency wiretapping program amounts to one big state secret and is not subject to a judicial challenge. One big reason, Walker wrote: It’s not much of a secret at all. “The government has disclosed the general contours of the ‘terrorist surveillance program,’” Walker wrote in a 72-page ruling (.pdf) issued Wednesday. Walker’s ruling in Hepting v. AT&T, 06-672, opens the door to a huge class action on behalf of millions of telecommunications customers nationwide. AT&T’s lawyers at Pillsbury Winthrop Shaw Pittman declined to comment on Walker’s decision, but observers say the company will almost certainly challenge it before the Ninth Circuit U.S. Court of Appeals. “The Ninth Circuit is going to be addressing this probably before we get too far along in discovery, but we’ll take advantage as long as the door is open to us,” said plaintiffs’ lawyer Reed Kathrein. Kathrein is litigating for the Electronic Frontier Foundation, a San Francisco public interest group that filed suit in January. Though the state secrets privilege failed to get the case dismissed, Kathrein expects the government to make it a recurring argument throughout litigation. “Obviously, I think they’ll say everything going forward in the discovery is a state secret,” said the Lerach Coughlin Stoia Geller Rudman & Robbins partner. Relying on a 1998 ruling from the Ninth Circuit, the government used a three-pronged argument to seek dismissal. The very subject matter in the case is a state secret, plaintiffs can’t make a prima facie case without access to confidential information and the state secret privilege effectively deprives defendant AT&T of information it needs to mount a defense, government attorneys argued. Walker said cases cited by the government failed to support its contention in Hepting, noting that the state secrets privilege dates way back in U.S. history to Aaron Burr’s trial for treason. Unlike a 19th century case in which the government successfully asserted state secrets � involving the estate of a spy that sued Abraham Lincoln over espionage services performed during the Civil War � Walker said the Hepting plaintiffs are not bound to keep quiet. “Plaintiffs made no agreement with the government and are not bound by any implied covenant of secrecy,” Walker wrote. Carl Tobias, a law professor at the University of Richmond, said Walker’s ruling “seemed to carefully balance civil liberties and national security [and] thoroughly dealt with all the relevant precedent.” But Tobias said other judges, including those facing similar claims in other jurisdictions, might not be as flexible in applying case law on the state secrets privilege. “When the government has claimed [the state secrets privilege], it’s been almost automatic for some judges,” he said. Given the government’s public acknowledgements of wiretapping � including President Bush’s admission last December that he authorized the program � plaintiffs lawyer Robert Fram said he wasn’t surprised by Walker’s ruling. The fact that several major telecommunications providers, but not AT&T, denied participation in the wiretapping proved significant as well. “I think Judge Walker paid careful attention to the public discussion of the issue,” said Fram, a Heller Ehrman partner representing the Electronic Frontier Foundation. “The denials by some of the telecom companies provide stark contrast to [AT&T's statements].” Walker, who’s noted for ruling with a libertarian viewpoint, capped his decision with a bit of skepticism about the terrorist surveillance program. “It seems odd,” he wrote, “that a terrorist would continue using AT&T given that BellSouth, Verizon and Qwest have publicly denied participating in the alleged communication records program and would appear to be safer choices.” Walker cancelled his own AT&T service when he took the wiretapping case.

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