Federal Judge Vaughn Walker has denied motions to dismiss the Electronic Frontier Foundation‘s lawsuit against AT&T, which alleges that the telco unlawfully participated in the National Security Agency‘s electronic surveillance program. The federal government moved to dismiss on the grounds that state secrets would necessarily be revealed during a trial. Judge Walker stated that the government had already disclosed information about the program in response to the New York Times’ article on it; hence, no risk to state secrets.
Put aside the merits of the case for a moment. The judge’s decision to deny the motion to dismiss seems correct – I have always believed the state secrets claim was, at best, implausible – but I’m not sure I like the reasoning. The government’s, and AT&T’s, disclosures came in response to information leaked to the Times. This information was the grounds for the lawsuit itself. Responding to it, even in “broad terms” (Judge Walker’s words), apparently nullified the state secrets argument. Hence, for the plaintiff here (EFF), the leaked information was both sword (enabling the lawsuit) and shield (protecting against dismissal due to general responses by the government / AT&T to the Times article). If the government had issued a “no comment” on the article, it would have invited yet more criticism for being opaque on a key civil liberties issue.
In short, this type of situation presents the government with an extremely tricky decision. I haven’t read Judge Walker’s ruling yet, but I would hope that it at least grapples with this tension.
Or have I missed the boat on this aspect of the case?