[Infowarrior] - Judge to review gov evidence in ATT NSA case

[Richard Forno]

Judge Will Taste The Apple
http://blog.wired.com/27BStroke6/#1497337

District Court Judge Vaughn Walker delivered what may be the death blow to
the Electronic Frontier Foundation's lawsuit against AT&T today, ruling that
he will look at the government's secret evidence supporting its motion to
dismiss the anti-secret surveillance lawsuit since it might disclose
national security secrets.

The EFF had argued that the judge could order AT&T to stop its alleged
complicity in warrantless government surveillance based solely on government
admissions and the sealed, but unclassified, evidence provided by AT&T
whistleblower Mark Klein.

The online civil liberties group also counseled Judge Walker to only look at
the documents little by little and disclose what he could to the EFF, so
they could counter the secret arguments backing the government¹s assertion
of a power known as the state secrets privilege.

The government argues that the case should be dismissed because it could
confirm or deny the existence of a secret program, while the EFF says that
if AT&T was provided with legal justification for turning over records to
the government, that letter isn¹t classified according to law.

Walker dismissed EFF¹s arguments, agreeing (.pdf) with AT&T and the
governments¹ arguments that AT&T can¹t defend itself without providing the
letter, a letter which the government says would prove the existence of a
state secret.

³[U]ntil the applicability and reach of the privilege is ascertained, AT&T
might be prevented from using certain crucial evidence, such as whether AT&T
received a certification from the government,² Walker wrote.

EFF is also not entitled to view the classified documents, according to the
ruling, since the law ³does not provide plaintiffs with a present right to
view the classified documents.²

The judge ordered the government to deliver the secret sworn statements from
intelligence chief John Negroponte and NSA director Keith Alexader from
Washington D.C. to his chambers by June 9.

Walker left one sliver of hope for the civil liberties group, saying that he
was mindful of the competing interests of the plaintiffs seeking recourse
and the government¹s need to keep state secrets safe.

Walker said he intended to look closely both at whether the government¹s
invocation of its legal nuclear option was justified and whether the
privilege will keep only some facts out of the public view, or justify the
outright dismissal of the case.

Legal precedents involving the state secrets privilege, including the recent
dismissals of FBI whistleblower¹s lawsuit against the government for
allegedly firing her for revealing security flaws and of a German man¹s
lawsuit against the CIA for allegedly kidnapping and torturing him, suggest
that the judge will dismiss the case following the June 23 hearing.