SAN FRANCISCO — A federal judge Wednesday shot down telecom giant AT&T’s efforts to recover and suppress internal documents that a former AT&T technician says demonstrate the company’s collusion in illegal government surveillance.
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Last week the government formally asked U.S. District Judge Vaughn Walker to throw out the case for alleged national security reasons, a motion now scheduled to be heard June 23.
In the standing-room-only hearing Wednesday, the judge rejected the EFF’s request that the documents provided to the organization by former company technician Mark Klein be unsealed in court records, and ordered EFF not to share the papers with anyone.
“It appears that there is a possibility that the documents contain significant trade secrets or proprietary information belonging to AT&T,” said Walker.
But he rejected AT&T’s motion asking the court to order EFF to return the documents to the company, noting, “Plaintiffs say they got the documents innocently, therefore, their possession is in no way improper and in no way illegal.”
He also rejected AT&T’s request for the judge to enjoin Klein from talking about the documents or providing them to others, saying that AT&T could sue the whistle-blower on its own.
I like this judge already.
Also of note is what may be construed as an admission of guilt by AT&T’s attorney. To wit:
In court, AT&T attorney Bradford Berenson cast his client as a hapless victim, unable to defend itself while maintaining its national security obligations.
“The problem here is not just that the plaintiffs can’t make their case, but that the defendants can’t defend themselves,” said Berenson, noting that some perfectly legal instruments of surveillance, like Patriot Act national security letters, come with binding secrecy requirements.
“AT&T is an innocent bystander, and the fight should be between private parties and the government that started these (surveillance) programs and ran them,” Berenson told the court.
While not an explicit admission of guilt, it does raise the specter of AT&T trying to hide something.
Also, his reasoning is pitiful in this regard: the Constitution makes no express or implied exceptions for national security, and no law can override those provisions. Likewise, the various laws this activity appears to violate (see a tentative summary here) also do not spell out national security provisions under which their requirements and directives may be tossed out. If the Executive Branch can not act within the law, it should engage Congress to evaluate changing the laws only if appropriate and when such changes would not infringe or reduce Americans’ liberties and rights.
Finally, did everyone notice AT&T is trying to shift the blame for their own actions? Sure, we might have been breaking the law, but we did it because the government asked us to do it. That apparently didn’t sway Qwest in their resolve not to act illegally, so it’s nothing more than whining and pointing fingers, not to mention a massive company falling back on the childhood excuse of “they told me to do it.”
And the best for last:
Walker asked some pointed and skeptical questions about whether the nearly all-powerful state secrets privilege, a holdover from English common law, trumps the Constitution and Congress.
Since no such privilege exists anywhere in the Constitution, U.S. Code, federal regulations, or other law, it’s assumed by the Executive Branch under Article II only insomuch as it was a right utilized by the English. Can a nonexistent privilege never officially recognized by our country be used to override the Constitution, constitutional rights, federal law, and U.S. Code? Judge Walker thinks that’s a very valid question.
I really like this judge.