A federal appeals court on Wednesday agreed to hear arguments from the government as to why a lawsuit against AT&T for its alleged cooperation in a terrorist surveillance program should be dismissed due to state secrets.
The Electronic Frontier Foundation brought a lawsuit January 31 against AT&T alleging that the company unlawfully cooperated with the National Security Agency in implementing what President George W. Bush calls the terrorist surveillance program, a program to capture international telephone calls of suspected terrorists and their associates where one end of the call is in the United States.
The Department of Justice on Thursday asked for a stay in the case, as well as the other cases which had been consolidated with it, asking the district court to halt entirely while the Ninth Circuit Court of Appeals considers the case.
“The government’s proposed stay would not be in the interests of justice in this very important case about ongoing illegal spying on millions of ordinary Americans,’ said EFF media relations coordinator Rebecca Jeschke. “Many elements of our suit can and should go forward while the 9th Circuit considers the state secrets issues.’
The Department of Justice asserted that litigating the case would reveal national security secrets, causing exceptionally grave damage to the national security, and moved to dismiss the case. In July, U.S. District Court Judge Vaughn Walker denied the government’s motion to dismiss, ruling that “because the very subject matter of this litigation has been so publicly aired . . . dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.’
The government appealed that decision, and the the Ninth Circuit Court of Appeals agreed Wednesday to hear the appeal. The appeals court did not give an indication as to when it might rule on the appeal.
“We are looking forward to defending Walker’s decision to deny the motions to dismiss before the appeals court,’ said EFF staff attorney Kurt Opsahl.
After the motion to dismiss was denied, 17 other lawsuits against various telephone companies were consolidated with the EFF’s case. Judge Walker will hold a case management conference Nov. 17 for these cases, Opsahl said.
In a separate case, a federal judge in Michigan ruled that the NSA terrorist surveillance program was unconstitutional. The government is being allowed to continue the program while it pursues an appeal.