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Federal Judge Anna Diggs Taylor came under attack from conservatives last month after ruling the National Security Agency’s warrantless surveillance program is both illegal and unconstitutional. Christian Coalition Chairwoman Roberta Combs derided the decision as “radical judicial activism” by a “Jimmy Carter-appointed judge.” Combs’ criticisms were echoed by Republicans in Congress and other groups supportive of the Bush administration. But President George W. Bush’s allies have more to be worried about in the federal courts than just Taylor’s decision. Indeed, if the legality of the NSA’s surveillance program ends up before the U.S. Supreme Court � where many observers think it’s headed unless Congress manages to intervene � it’s unclear whether Taylor’s ruling in Detroit will be the case that got it there. That’s because Justice Department lawyers are currently engaged in tough battles related to the surveillance program in three other federal courts. The DOJ’s efforts to keep a lid on the program have been made more difficult by several factors. Among them: a whistle-blower in California, the accidental disclosure of a secret document by the Treasury Department, and a legal strategy by some opponents that has challenged the NSA program indirectly by targeting the telecom companies accused of illegally providing the government with customer data. Last winter, when the warrantless surveillance program was disclosed in The New York Times, it seemed unlikely that legal challenges to the program would make it beyond even the most preliminary hearings. Though many legal scholars questioned the Justice Department’s rationale for declaring the program was not a violation of the Foreign Intelligence Surveillance Act, the government seemingly possessed two enormous advantages in court. First, plaintiffs in any suit would have to demonstrate actual injury from the eavesdropping in order to have standing � an apparently difficult legal obstacle given that details of the individuals targeted by the program remained secret. And second, DOJ lawyers would seek to block discovery in any suit by asserting the state-secrets privilege, a legal doctrine the government has used successfully in the past to prevent disclosure of national security information. In ruling for the American Civil Liberties Union in its suit last month, Taylor, a judge on the U.S. District Court for the Eastern District of Michigan, dispensed with both arguments. She ruled that public statements by government officials had provided enough information about the program for the suit to go forward without forcing the government to disclose state secrets. And she found the ACLU’s plaintiffs in the case, a group of reporters, lawyers, and scholars with overseas contacts, had demonstrated sufficient injury to sue. “The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the [program],” she wrote. Thus far, she is the only federal judge to rule on the merits of whether the warrantless surveillance program violates FISA or the Fourth Amendment prohibition on unreasonable searches. But another federal judge, who has suffered far less public ridicule, has ruled against the government’s state-secrets claim and granted standing to plaintiffs challenging the NSA’s program. Additionally, federal judges in New York and Oregon have yet to rule on suits the Center for Constitutional Rights and a defunct Islamic charity have brought that could prove as thorny for the government as the ACLU’s. Docked by the bay Though Bush’s supporters have sought to criticize Taylor as a liberal activist appointed by a Democrat, those descriptions don’t fit Chief Judge Vaughn Walker of the U.S. District Court for the District of Northern California. Nominated by President George H.W. Bush in 1989, Walker has made headlines for ordering a convicted felon to wear a placard reading, I AM A MAIL THIEF. THIS IS MY PUNISHMENT. Walker is presiding over the class action Hepting v. AT&T Corp. Filed in February by the Electronic Frontier Foundation and the mighty plaintiffs firm Lerach Coughlin Stoia Geller Rudman & Robbins on behalf of AT&T customers in California, the suit accuses the telecom company of illegally providing the NSA with the contents of its customers’ communications. It also alleges the company illegally turned over to the government other customer data that could be searched by databases for communications patterns. The plaintiffs in San Francisco were armed with one piece of evidence the ACLU didn’t have in its successful suit against the government in Michigan. Mark Klein, a former AT&T technician, had provided them with detailed information about the construction of a secure room at an AT&T building in San Francisco, in which the company was allegedly routing data directly to the NSA. Though the government wasn’t named as a defendant in the suit, in May the Justice Department sought to intervene in the case, asserting the state-secrets privilege and asking Walker to dismiss the suit outright. In addition, lawyers for AT&T from Pillsbury Winthrop � Walker’s former firm � argued that the plaintiffs in the case lacked the standing to sue, and asserted that even if AT&T had provided the government with its customer call data, the company was immune from such suits under federal law. But Walker didn’t agree with either the Justice Department’s arguments or those put forward on behalf of AT&T by its lawyers. On July 20, in a 72-page opinion citing public statements about the NSA’s surveillance program by top Bush administration officials, Walker wrote that “the court cannot conclude that merely maintaining this action creates a �reasonable danger’ of harming national security.” He also found that AT&T customers had standing to sue the company and that AT&T was not immune from the suits because it had not demonstrated that it had received a lawful certification from the government to turn over its customers’ data. To head off discovery in the case, the government and AT&T immediately filed an interlocutory appeal, and Walker agreed to stay his decision � at least temporarily. The 9th Circuit has not yet decided whether to hear the appeal. By this time, the Hepting case was just one of what would become dozens of class actions across the country against AT&T, Verizon Communications Inc., and other telecom companies, spurred in part by an investigative article in USA Today that detailed the companies’ cooperation with the NSA. Since many of the suits were similar, a panel of federal judges (known as the Judicial Panel on Multidistrict Litigation) sought to consolidate them in a single court. The government and the phone companies argued that the suits should be moved to the U.S. District Court for the District of Columbia. In addition to cutting down on the number of venues in which they’d have to fight, the government and phone companies wanted the cases moved to Washington because the appellate court that oversees that district court, the U.S. Court of Appeals for the D.C. Circuit, has become increasingly conservative. The court has seven Republican appointees and three Democratic appointees. Not all of the plaintiffs’ lawyers supported consolidating the suits. But of those who did, most wanted the cases moved to Walker’s court in San Francisco, which is overseen by the U.S. Court of Appeals for the 9th Circuit, long known as the country’s most liberal. In a setback for the government and the phone companies, on Aug. 9 the panel agreed with the plaintiffs. With nearly two dozen suits now before a well-regarded Republican appointee who has dismissed both the government’s state-secrets claim and AT&T’s attempt to show its customers didn’t have standing to sue, even some ardent supporters of the NSA program have had to concede that, for the moment, the legal tide has turned against them. “Judge Walker has a very good reputation,” says Richard Samp of the conservative Washington Legal Foundation, which has filed an amicus brief on the government’s side in the ACLU’s suit in Michigan. “And that reputation is demonstrated by the fact that he was the one who was assigned the multidistrict litigation. All the more reason why a generally liberal appeals court like the 9th Circuit might be reluctant to overturn him on state secrets.” In late July, five days after Walker shot his arrow through the government’s state-secrets claim, but before the judicial panel ordered most of the telecom cases moved to San Francisco, a judge from the U.S. District Court for the Northern District of Illinois issued a separate ruling in another suit against AT&T in which the Justice Department had intervened. In that case, brought by a local chapter of the ACLU, Judge Matthew Kennelly dismissed the suit, ruling that the state-secrets privilege should prevent it from going forward. But Kennelly’s opinion wasn’t quite the slam-dunk supporters of the NSA program might have hoped for. That’s because in the Illinois case the ACLU limited its suit merely to the disclosure of customer records by the phone companies, rather than the actual contents of the calls themselves. The distinction mattered, Kennelly pointed out in the second paragraph of his opinion, because government officials had already disclosed a substantial amount of information about the NSA’s content interception, but not its records collection. Rather than repudiating Walker’s decision in San Francisco, Kennelly took pains to show his ruling was in many ways consistent with it. Indeed, in the Michigan case, Taylor used similar reasoning to set aside the government’s state-secrets claim over content interception. After Kennelly’s decision, the ACLU of Illinois filed an amended complaint against AT&T that took into account Kennelly’s analysis. The revised suit was recently transferred to San Francisco for consideration by Walker. Neither the Justice Department nor lawyers for AT&T would comment for this article. But the rulings at the district level have so far cheered the government’s opponents. “I think that the lesson to be learned is, they thought state secrets would be a magic wand that would protect anything and everything that they wanted to do,” says Cindy Cohn, a lawyer for the Electronic Frontier Foundation involved in the suit in San Francisco. “And it would be wise to ratchet down their thinking about the amount of power they have to keep things from the judiciary.” Awaiting Supremes But there’s one other civil suit over the surveillance program that has a chance of wending its way to the Supreme Court. That suit, brought in federal court in Oregon by a Muslim charity known as the Al-Haramain Islamic Foundation, differs both from the suits against the government brought by the ACLU in Michigan and the Center for Constitutional Rights in New York, as well as the class actions against the phone companies. In that case, lawyers for Al-Haramain, a defunct Saudi-affiliated charity that was designated a terrorist organization by the Treasury Department’s Office of Foreign Assets Control, say they have documentary proof showing that privileged conversations between the charity’s director in Saudi Arabia and its lawyers in Oregon were monitored by the warrantless surveillance program. The documents, which apparently include transcripts of the conversations between Al-Haramain Director Suliman al-Buthe and lawyers Wendell Belew and Asim Ghafoor, were disclosed accidentally by the Treasury Department in 2004 and were filed under seal in the suit. The FBI later sought to recover the documents, and the government threatened to prosecute The Washington Post, which obtained a copy in 2004, if it published their contents. The judge in the case is due to rule on the government’s assertion of state secrets, and the admissibility of the secret transcripts, early this month. The administration’s backers say they’re unperturbed by the rulings of Taylor, Walker, and other district court judges. “A lot of foolish things happen on the district court level, but not too many happen at the appellate level,” says David Rivkin, a Baker & Hostetler lawyer who worked in both the Reagan and Bush I administrations. The Michigan case, of course, is the furthest advanced. Taylor ruled not only on the standing and state-secrets issues but on the merits of the legality and constitutionality of the NSA wiretapping program. The ACLU and the Justice Department have agreed to seek an expedited appeal in the case before the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati. Meanwhile, in San Francisco, the Justice Department has sought an interlocutory appeal to the 9th Circuit on Walker’s dismissal of the state-secrets claim. Should there be split rulings between the circuits (the Center for Constitutional Rights case could eventually wind up before the U.S. Court of Appeals for the 2nd Circuit, while any appeal from the Oregon case would go to the 9th Circuit), that would seemingly set the stage for the Supreme Court to rule on the government’s state-secrets claim. And even some of those convinced that the NSA program is illegal say the high court may be inclined to let the issue be hashed out by Congress and the White House, rather than have the program face open examination in the federal court system. “The administration is still in a reasonably good position,” says Bruce Fein, a former Reagan-era Justice Department official who has been an outspoken critic of the legality of the NSA program. “The last Supreme Court decision on the state-secrets issue was very broad . . . but the more judges are suspicious that something really wrong is happening, the more they’re inclined to bend doctrines to find ways to stop it.” Jason McLure can be contacted at [email protected]

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