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Federal Judge Anna Diggs Taylor came under attack from conservatives last month after ruling that the National Security Agency’s (NSA) 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 U.S. Department of Justice (DOJ) 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 whistleblower 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. 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 the Foreign Intelligence Surveillance Act 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. Also, federal judges in New York and Oregon have yet to rule on suits the Center for Constitutional Rights and a defunct Islamic charity have filed that could prove as thorny for the government as the ACLU’s. Walker: No liberal 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 plaintiffs’ firm Lerach Coughlin Stoia Geller Rudman & Robbins on behalf of AT&T customers in California, the suit accuses the telecommunications company of illegally providing the NSA with the contents of its customers’ communications. It also alleges that the company illegally turned over to the government other customer data that could be searched by databases for communication patterns. The plaintiffs in San Francisco were armed with one piece of evidence the ACLU did not 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 Shaw Pittman argued that the plaintiffs in the case lacked the standing to sue under federal law. But Walker didn’t agree with either the Justice Department’s arguments or those by AT&T’s lawyers. On July 20, Walker wrote that “the court cannot conclude that merely maintaining this action creates a ‘reasonable danger’ of harming national security.”

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