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Little more than a year ago, privacy advocates were optimistic about their chances of using the federal courts to unlock the secrets of the National Security Agency’s warrantless wiretapping program. A federal judge in Detroit ruled in August 2006 that the program violated the Bill of Rights and the Foreign Intelligence Surveillance Act. Another in San Francisco refused to dismiss a bundle of cases directed at major telecommunications companies accused of allowing the NSA to illegally comb through customers’ communications. The Justice Department was losing ground, and, incredibly, it seemed the courts were on the verge of drenching some of the country’s most closely held national security practices in sunlight. But that hasn’t happened, at least not in the courts. “For the most part, the courts have been pretty responsible in trying to balance the needs of litigants without forcing the government to disclose classified information,” says Bryan Cunningham, a Denver-based homeland security consultant and former national security adviser under Presidents Bill Clinton and George W. Bush. U.S. District Judge Anna Diggs Taylor’s ruling in Detroit was vacated by the U.S. Court of Appeals for the 6th Circuit in July, and the remaining cases — there are more than 40 in all, including four launched by state public utility commissions and one by the state attorney general’s office in New Jersey — are being held up in U.S. District Court for the Northern District of California, pending a procedural appeal. In August, the U.S. Court of Appeals for the 9th Circuit heard arguments on whether the first two cases could proceed to discovery without violating the state secrets privilege, which if invoked could bar litigation that requires the disclosure of classified information. Complicating matters, Congress is considering new legislation that would grant the telecoms retroactive immunity from liability. If passed, it would kill all but a few of the pending California cases and would likely cut off the states’ independent investigations into the telecoms’ activities between 2001, when the surveillance program began, and January 2007, when the Bush administration shifted oversight of the program to the Foreign Intelligence Surveillance Court. Despite the setbacks in court, the basic contours of the program have slowly emerged since The New York Times reported its existence in 2005. And some involved in the litigation say that by challenging the legality of the program and attacking the telecoms’ complicity, they have steered the administration toward more public disclosure and fueled the debate on Capitol Hill over what powers to grant the president under FISA. CONNECTING THE DOTS The Bush administration abruptly placed the secret wiretapping program in the care of the Foreign Intelligence Surveillance Court on Jan. 18, less than two weeks before the 6th Circuit heard oral arguments in the American Civil Liberties Union’s case against the NSA. In August, the ACLU filed a request with the FISA court for documents discussing the scope of the secret wiretapping program. The court’s presiding judge, Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia, in a rare public order, asked the government to file a response. (That case is fully briefed and awaiting a ruling.) The following week Michael McConnell, director of national intelligence, publicly discussed aspects of the program and its transfer into the jurisdiction of the FISA court in an interview with the El Paso Times. “These things are all connected,” says Jameel Jaffer, director of the ACLU’s National Security Program who represented the group of academics, journalists, and lawyers in the 6th Circuit case and worked on the FISA request. Jaffer said the ACLU will petition the Supreme Court to hear the 6th Circuit case this week. McConnell also confirmed the telecoms’ participation in the program in the newspaper interview, only one week after lawyers for the government, AT&T, and the Electronic Frontier Foundation, a privacy group representing customers in the lead class action in California, argued the state secrets issue in the 9th Circuit. McConnell didn’t name any companies in the interview, but said that “under the president’s program, the terrorist surveillance program, the private sector had assisted us. Because if you’re going to get access you’ve got to have a partner and they were being sued.” Deputy Solicitor General Gregory Garre had argued in court that “litigating this action could result in exceptionally grave harm to the national security of the United States” because it required the adjudication of “whether or to what extent any secret intelligence-gathering relationship exists between AT&T and the government.” The three-judge panel hearing the case, all Democratic appointees, appeared reluctant to invoke the state secrets standard before any discovery had taken place. “The ordinary course, wouldn’t you agree, would be to let the litigation go forward and as the government asserts the privilege, the . . . district judge looks at the information in camera and makes that determination,” Judge Michael Hawkins said during arguments. Garre said this case was extraordinary because the “very subject matter of the litigation was a state secret” — an argument that would seem moot after the disclosures in McConnell’s interview. The Electronic Frontier Foundation subsequently filed a notice with the court, arguing that McConnell’s remarks supported the case against AT&T and weakened the government’s broad assertion of the state secrets privilege. The government, in its reply, said that McConnell never explicitly mentioned AT&T or allegations that the telecom created a surveillance dragnet in conjunction with the NSA. A loss for the Justice Department would send the case back down to Judge Vaughn Walker, of the U.S. District Court for the Northern District of California, who is handling all of the NSA-related litigation. Justice, which declined interview requests, would likely appeal, but court watchers predict the government will forgo an en banc hearing and head straight for the Supreme Court. Cindy Cohn, legal director at the Electronic Frontier Foundation, says the other active cases — which variously target the telecoms, Internet providers, the NSA, the FBI, and the president, among others — are at a near standstill pending the ruling. THE WAITING GAME McConnell and other administration officials are pressing hard for legislation that would retroactively immunize the telecoms, which have reportedly deployed an army of their own to lobby Congress. Some say these efforts could inform the 9th Circuit’s ruling. “Judges are human and read the papers. If they think it’s going to be solved in Congress, they will likely delay their decision,” says Cunningham, a former federal prosecutor who filed a brief in the 6th Circuit case that was dismissed in July. The judges in that 6th Circuit case ruled that a group of academics, journalists, and lawyers represented by the ACLU lacked standing because they could not prove the program had caused them injury. In ruling narrowly, the panel sidestepped sensitive political questions. The 9th Circuit could show a similar reticence, Cunningham says. “Courts love to stay out of those fights,” he says. Privacy groups are urging Congress to refrain from legislating until the 9th Circuit rules. “The decision in the case could help Congress understand what role the companies played in the NSA’s warrantless surveillance program. There’s no reason to legislate in the dark,” says Gregory Nojeim, director of the Center for Democracy and Technology‘s Project on Freedom, Security and Technology. Others say even if the 9th Circuit sides with the plaintiffs, the cases will move too slowly for Congress to delay acting. “These are the kind of cases that get bogged down for years,” says Orin Kerr, a law professor at George Washington University and an expert on Internet surveillance. “The important legal issues at the bottom of them may never be fully heard.”
Joe Palazzolo can be contacted at [email protected].

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