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Lawyers with the U.S. Department of Justice are having a tough time defending the National Security Agency’s warrantless surveillance program. That’s because instead of just suing the government, some opponents have challenged the surveillance program indirectly � they’ve targeted the telecoms accused of providing the NSA with customer data. Critics allege that the NSA program violates the Foreign Intelligence Surveillance Act, which requires the government to get the approval of a special court in order to conduct secret surveillance operations. But Justice Department lawyers initially appeared to have two enormous advantages in defending the NSA. First, plaintiffs in any suit would have to demonstrate actual injury from the eavesdropping in order to have standing � an apparently difficult obstacle, since the government isn’t identifying individuals targeted by the program. And second, Justice lawyers would seek to block discovery in any suit by asserting the state-secrets privilege, a legal doctrine the government has previously used to prevent disclosure of national security information. But this past May another faction was brought into the controversy, when USA Today reported that four big telecoms � AT&T Corp., Verizon Communications Inc., SBC Communications Inc., and BellSouth Corporation � had provided phone records to the government. BellSouth and Verizon subsequently denied that they cooperated with the NSA program. AT&T and SBC, which have since merged, have declined to comment on the allegations. Opponents of the NSA program quickly took advantage of the new development, filing dozens of class actions against the telecoms in federal courts across the country. Because many of the suits were similar, the Judicial Panel on Multidistrict Litigation sought to consolidate the actions in a single court. In August the panel assigned the suits to Vaughn Walker, a federal judge in San Francisco who was already hearing an earlier suit targeting a telecom, Hepting v. AT&T. The consolidation was a considerable setback for the Justice Department and the telecoms. That’s because in a July ruling in the Hepting case, Walker ruled against AT&T and the government on two counts. The judge found that the plaintiffs, AT&T customers in California, did have standing to bring the suit. And Walker ruled that the government, which had intervened in the case, couldn’t rely on the state-secrets defense to withhold information. The Hepting action was filed in February by the Electronic Frontier Foundation, a San Francisco � based advocacy group, and Lerach Coughlin Stoia Geller Rudman & Robbins, the San Diego � based plaintiffs firm. The suit accuses AT&T of illegally providing the NSA with the contents of its customers’ communications. The action also alleges that AT&T illegally turned over to the government other customer data that could be searched by databases for communications patterns. (Neither the Justice Department nor lawyers for AT&T would comment for this article.) Though the government wasn’t named as a defendant in Hepting, in May the Justice Department sought to intervene in the suit, asserting the state-secrets privilege and asking Walker to dismiss the suit outright. In addition, lawyers for AT&T argued that the Hepting plaintiffs 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 disagreed with all of these arguments. 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 with the U.S. Court of Appeals for the Ninth Circuit. Walker agreed to stay his decision, at least temporarily. At press time the circuit court had yet to decide whether to hear the appeal. Walker’s decision in Hepting was a significant loss for the Justice Department, since it wasn’t able to convince a judge widely regarded as a conservative to defer to the government. Now the government has an even bigger concern, since the rest of the class actions against the telecoms have been consolidated before Walker. The problem is that if the judge rules against the defendants (as he did in Hepting), they have to take their appeal to the liberal Ninth Circuit. The American Civil Liberties Union, the Center for Constitutional Rights, and a now-defunct Muslim charity have filed three other significant challenges to the NSA program. Because these cases � as well as the consolidated actions before Walker � are each located in a different judicial circuit, the issue will go to the U.S. Supreme Court if there’s a circuit split. Even those observers who are convinced that the NSA program is illegal say that the high court may be inclined to let the issue be hashed out by Congress and the White House. (The Senate is currently considering a bill that would authorize warrantless surveillance.) According to Bruce Fein, a Reagan-era Justice Department official who has been an outspoken critic of the legality of the NSA program, “The administration is still in a reasonably good position.” � Jason McLure

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