ChezLark

A potentially promising development: it would seem that the judge in the lawsuit against AT&T for collaborating with the NSA’s collection of telephone records isn’t willing to immediately roll over and play dead for the government. Recall that the government has gone with the “litigation nuclear option” — the “state secrets” privilege, and is claiming that the AT&T lawsuit must be dismissed wholesale because proceeding would inevitably disclose government secrets.

27 Stroke B mentioned today that the judge handed out homework to the two sides today, in the form of a list of 11 questions that attorneys “should be prepared to address” at oral arguments on Friday. Among the questions:

5. If a warrant is not required for the government via AT&T to intercept plaintiffs’ communications, how can the Fourth Amendment’s reasonableness requirement be adjudicated without implicating state secrets?
6. How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T’s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?
7. If the litigation discloses that AT&T received a certification from the government, the existence of this certification would evince AT&T’s involvement in some kind of surveillance program.
   1. Could the difference between a possibility that AT&T is involved (based on public reports) versus a near certainty that AT&T is involved (if it received a certification) itself be a state secret?
   2. In particular, consider a terrorist who would use the communications channels that are allegedly being monitored so long as he is not certain that they are being monitored. If this litigation reveals that AT&T has received a certification and is involved in some kind of surveillance program, might the risk to national security of disclosure of the certification be de minimis and not outweigh plaintiffs’ due process rights?

Bold emphasis is mine. One thing makes me nervous: I’m not sure the judge’s thinking in 7(b) is actually legal. From having read the dismissal order in the lawsuit brought by El Masri (the German citizen who was spirited to Afghanistan by the CIA), I’m a little worried. From that ruling:

Accordingly, the judiciary must accept the executive branch’s assertion of the privilege whenever its independent inquiry discloses a “reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” [...] Importantly, once the court is satisfied that any disclosure of the putative secrets “might have a deleterious effect on national security, ‘the claim of the privilege will be accepted without requiring further disclosure.’” [...]

Finally, it is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake. Thus, the adverse party’s need for privileged information affects only the depth of the judicial inquiry into the validity of the assertion and not the strength of the privilege itself, for “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

I added bold emphases. A footnote says:

In re Under Seal, 945 F2d 1285, 1288 (4th Cir. 1991) (“the privilege is absolute when properly invoked”); United States v. Halkin, 690 F.2d 977, 990 (D.C.Cir. 1982) (“[S]ecrets of state—matters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of the nation—are absolutely privileged from disclosure in the courts.”).

I understand this to mean that the judge in the EFF / AT&T lawsuit may conduct a “searching” inquiry into whether, in fact, there are legitimate state secrets at issue, but if, say, there really is a classified NSA surveillance program in operation, it is likely that the proper application of the state secrets privilege means that the case must be dismissed, unless there is some way to litigate it without disclosing the state secrets.

On the other hand, it’s possible that the judge’s question 7(a) leads to a possible middle ground: perhaps the disclosure that AT&T received some kind of certification from the government compelling its participation in some kind of classified program cannot reasonably be considered a state secret, in itself.

We’ll see.