Judge Vaughn Walker of the Northern District of California handed down an important ruling today rejecting motions to dismiss EFF’s lawsuit against AT&T for its participation in the NSA domestic surveillance and call records program.
It’s a very long opinion, but here’s the gist of it: Judge Walker rejected DOJ’s argument that the suit had to be dismissed outright under the state secrets privilege. Walker ruled that enough of the various programs had been acknowledged by the government and AT&T that the existence of the programs wasn’t a state secret. I assume an appeal will be coming soon, but in the meantime the case will be set to go on to the discovery stage. Notably, the state secrets privilege will continue to play a key role at that stage: the gist of Walker’s opinion is that he’ll scrutinize each discovery request for privilege rather than dismiss the case outright at the beginning.
The opinion also has an interesting section on the Fourth Amendment claims in the complaint. It’s really just dicta, as Walker had already rejected the theory which would have made the issue relevant. But AT&T had argued that it was immune from suit under the qualified immunity doctrine because the Fourth Amendment issues in the case were not “clearly established.” After ruling that AT&T was not entitled to qualified immunity in any event, Judge Walker added a “note” rejecting the claim on the merits of the Fourth Amendment issue. Here’s the discussion:
The court also notes that based on the facts as alleged in plaintiffs’ complaint, AT&T is not entitled to qualified immunity with respect to plaintiffs’ constitutional claim, at least not at this stage of the proceedings. Plaintiffs’ constitutional claim alleges that AT&T provides the government with direct and indiscriminate access to the domestic communications of AT&T customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T Corp has provided and continues to provide the government with direct access to all or a substantial number of the communications transmitted through its key domestic telecommunications facilities, including direct access to streams of domestic, international and foreign telephone and Internet communications.”); id, ¶ 78 (incorporating paragraph 42 by reference into plaintiffs’constitutional claim).
In United States v United States District Court, 407 US 297 (1972) (Keith), the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, id at 321, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” id at 308, and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country,” id. Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.
(paragraph break and emphasis added)
This Fourth Amendment discussion seems somewhat mystifying to me. The wiretapping in Keith is distinguishable from the alleged facts in the NSA program on a number of possible fronts, so it seems quite odd to simply announce without analysis that “the very action” has been held to be unconstitional. To pick just one front, there is a foundational difference in electronic surveillance between targeting particular evidence and incidentally collecting evidence to enable the targeting of other evidence. Judge Walker’s passage seems to simply ignore that difference, which is hard to explain.
Nonetheless, this is (as far as I know) the first judicial opinion to express a view of the merits of the NSA program. Even if it’s dicta, the reasoning is unimpressive, and it is based only on facts alleged in the EFF’s complaint, Judge Walker’s statement that it “cannot seriously [be] contended” that “the alleged domestic dragnet was legal” based on the complaint seems likely to impact the debate.
Finally, it’s worth keeping in mind that this opinion may be very temporary. First, I gather an appeal is coming soon (interlocutory appeals are usually permitted in this sort of context, at least as I understand it). Second, if passed into law, Senator Specter’s NSA bill will pull jurisdiction over these issues away from Judge Walker, as well as the Ninth Circuit on appeal, and will ship the case to the FISA Court of Review instead. Judge Walker’s opinion today is a good hint of why that may make a considerable difference in the outcome of the litigation.
Thanks to Deven Desai for the link.
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AT&T alleged that it was immune from suit under the qualified immunity doctrine, but Judge Walker ruled that based on the allegations in the complaint the program clearly violated the Fourth Amendment.
Private actors are almost never entitled to qualified immunity. See, e.g., Richardson v. McNight: “The issue before us is whether prison guards who are employees of a private prison management firm are entitled to a qualified immunity from suit by prisoners charging a violation of 42 U.S.C. § 1983. We hold that they are not.”
So even if the Fourth Amendment analysis (determing whether the relevant constitutional law was clearly established) was incorrect, AT&T was properly denied qualified immunity.
[OK Comments: You're right, Mike, and I have amended the post to make clear that Judge Walker 1) rejected the claim to qualified immunity under Richardson et al. and then 2) made the point about the Fourth Amendment merits as an aside following that discussion.]
I’m not sure whether this is dicta, or an alternative holding and grounds for decision. The wording, “The court also notes,” is perhaps unfortunate in that it has an almost dismissive or off-hand conotation. However, if and when this goes up on appeal it appears the “dicta” would be properly and necessarily before the Court of Appeal, and thus not “dicta” at all. That is, the Court of Appeal could affirm the Order on the grounds quoted above. Perhaps more importantly, the Court of Appeal could not properly reverse and remand the Order without addressing said grounds.
I think the key to Judge Walker’s reasoning on this point is in this passage: “Because the alleged dragnet here encompasses the communications of ‘all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,’ it cannot reasonably be said that the program as alleged is limited to tracking foreign powers.”
The facts alleged by the plaintiffs go beyond those admitted by the government publicly about the so-called Terrorist Surveillance Program. The complaint is based in large part on information from an AT&T “whistleblower” who says he knows that the telecom company permits the NSA to siphon all the phone traffic passing through certain U.S. switches.
Walker’s theory, I think, is that all this traffic could not possibly be related to foreign-intelligence surveillance, so it does not fall within the carve-out from Keith.
As I think about it further, it seems that Walker’s rationale for raising the Fourth Amendment issue is to justify his statement here, in which he distinguishes this case from the D.C. Circuit precedent of Harkin v Helms:
“The court does not ‘balanc[e the] ultimate interests at stake in the litigation.’ Halkin II, 690 F2d at 990. But no case dismissed because its ‘very subject matter’ was a state secret involved ongoing, widespread violations of individual constitutional rights, as plaintiffs allege here.”
(Harkin stated that no balancing test was involved in court consideration of state-secrets privilege, only the one-sided question of whether the risk of disclosure might “trigger the absolute right to withhold the information.”)
Having made that observation I must observe — despite my sympathy for the thrust of Walker’s opinion — that he might be said to contradict himself here.
He denies that he is applying a balancing test, then proceeds in the next sentence to apply a balancing test — unless his theory is that once serious violations of constitutional rights are implicated, that presents a qualitative difference beyond mere “balancing.” (IMHO, he might also have cited serious breaches of separation-of-powers doctrine as another reason; he did imply the connection elsewhere by quoting O’Connors famous dicta from Hamdi.)
It does appear to me that Judge Walker is trying rather hard to find a way to keep from applying the sister circuit’s precedent, so he could deny the government’s claim to the privilege. That is okay with me, since the “state-secrets privilege” is really judge-made law to begin with, not constitutional text. Let judges refine its contours, and let the Supreme Court resolve any tension expeditiously.
The NSA controversy presents such a large, looming crisis that it is an appropriate vehicle for the courts to retrench from their traditional deference to the president in lesser cases, I think. It would serve this president right for overreaching so egregiously.
BTW, this is an academic question given the timidity of the current Congress, but I will ask it anyway: Since, according to the D.C. Circuit, “The state secrets privilege is a common law evidentiary rule,” could not Congress redefine or limit it by statute?
Halkin v Helms, not Harkin
For what it’s worth, although Judge Walker sits in San Francisco, he is not the sort of lefty that one might expect to find in the N.D. Cal. (e.g., Judges Henderson or Wilken).
According to the post at SCOTUS Blog (http://www.scotusblog.com/movabletype/archives/2006/07/judge_rebuffs_g.html), Judge Walker has already certified his decision for interlocutory appeal.
Just an Observer,
I think Walker is making an argument resembling a balancing test, but not analogous to the balancing test. I think Walker is differentiating between the balancing of facts (i.e. weighing state interest and personal interest for a particular piece of evidence, as in the case of allowing/not allowing Moussaoui to call as witnesses, detainees at GitMo) and the “balancing” of the principal issue of the case. That is, there is a difference between arguing that a particular fact can not be entered into evidence due to its negative impact on future investigations/prosecutions/security of the nation and arguing that an entire line of cases cannot be considered due to its negative impact on future investigations/prosecutions/security of the nation.
In the former, the party may still make an argument on the merits, though; admittedly this may be done without the necessary supporting facts. However, in the latter, the case cannot be heard at all—if the judge were to dismiss that type of case based on state’s secret argument, he would, de facto, give the government (or other party of interest) carte blanche to violate the Constitutional Rights of the people. In the first case, that of a piece of evidence being suppressed, the defense is not prohibited from protecting the right(s) in question. In the case at hand, the very (alleged) violation of Constitutional Rights is deemed a state secret; this cannot thereafter be remedied (but for an appeal). The court would allow the government to (if the plaintiff is correct) violate rights, without remedy—or at least, providing the foundation from which such a course of events may progress.
I am not convinced that the Constitution was violated, but it seems to me that this must be decided on the merits, lest the government be provided a precedent to use in future cases, alleging far more egregious acts. As Blackstone said “A right without a remedy is no right at all.” The argument regarding a piece of evidence does not, per se, eliminate the party’s ability to protect their rights, as they can, theoretically use other evidence to prove their case. However, when one is prohibited the right to even ascertain whether a Constitutional Right was violated by the government, they, nor any other person are provided such recourse—especially when such violations are directed at all citizens
Thusly, it would seem that a balance test, as ordinarily understood would be entirely inappropriate. As I understand him, Walker is saying that if the principal allegation itself is in question, the judge ought not to weigh the government’s interest and individual’s interest to determine the greater. Rather, in such cases, as a matter of intrinsic meaning, there is no government interest great enough to trigger a balance test—the individual’s allegation is, prima facie, a priori, far greater.
I must be missing it. I also agree with the general opinion here (no summary judgment, but there might be one in the future depending on individual evidence items), but I can’t reconcile some of what I see as contradictions.
First, there is a tremendous amount of discussion about whether leaks, published reports, and public statements about this program constitute public knowledge about the program, obviating the claim that it’s “secret.” Much of the decision seems to hang on those disclosures – essentially, because of the disclosures, the program is “effectively public” [my words].
With this as the standard, I could see plaintiffs filing suit in a number of different contexts, simply asking questions. An activist could charge 60 companies, and receive 58 denials and two “decline to state” responses, helping them to know precisely which company to target. I think conspiracy theorists everywhere will love this opinion.
The other is whether AT&T should be targeted. It’s very interesting to me that the judgment states that “As a preliminary matter, the court agrees that the government has satisfied the three threshold requirements for properly asserting the state secrets privilege:” So the author is able to identify whether the rules have been followed, at least in some cases.
However, in the section on the pertinent law on page 37, on lines 7-27, the requirements for telecommunication companies when they are given a certificate to cooperate.
The government claims that the presence of a certificate is a state secret. In light of the “dog that did not bark” reasoning I’ve outlined above, I would say that it is. However, either AT&T received one or AT&T didn’t receive one. Which makes the following statement very curious:
“AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
As I read this, if the court assumes that the certificate did not exist, they are saying that the NSA went to AT&T and said “we need some information,” and AT&T said “sure thing, do you want it big or little? Tell you what, we’ll build a server room so you can snoop more easily.” I find that extremely unlikely – no company would expose itself to a potential constitutional privacy issue. It’s entirely possible that it happened, but unless you are of a suspicious mind, that doesn’t make it probable.
Let’s assume they *did* receive a certificate. The NSA went to AT&T and said, “we need some information,” AT&T said “sure, but you have to demonstrate that it’s legal,” and the NSA said “naturally, and here’s this certificate from the AG.” I find that much more plausible, although the facts in the case haven’t been established yet.
Also, if they received a certificate, the actions of this employee are problematic – in extremely liberal San Francisco, he might have been predisposed to be suspicious of corporations and the government, so rather than talking to management (who could have confirmed the presence of legal authority for the intercepts) he blew the whistle on a legitimate activity and compromised national security. If the facts come out in that fashion, I’d like to see him prosecuted.
The author claims that “no reasonable entity” receiving that certificate could have believed that their action was legal?
This strikes me as a remarkable thing.
Where a defendant seeks to dismiss at the pleading stage based upon qualified immunity, the threshold question is whether the plaintiff has alleged a violation of federal rights at all. See, e.g., Saucier v. Zatz, 533 U.S. 193, 201 (2001) (“A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”). Judge Walker’s discussion of the plaintiffs’ Fourth Amendment claims, as pleaded, therefore cannot be dictum, in that this discussion addresses an essential element of whether the complaint states a claim upon which relief can be granted.
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Just to keep the record here up to date, it is worth reporting that the administration this week asked the Ninth Circuit for an expedited appeal of Judge Walker’s decision. See Lyle Denniston’s SCOTUSblog report: Government seeks fast track on spying appeal
DOJ says Walker’s decision is “a usurpation of the proper role of the Executive in the field of protection of information that is key to national defense.”