EFF Case Against AT&T To Go Forward

Tyler Too writes "The NSA wiretap lawsuit filed by the EFF will apparently be moving forward. A federal judge has denied the government's request that the EFF's lawsuit against AT&T be dismissed. Among other things, the judge ruled that 'if the government has been truthful in its disclosures, divulging information on AT&T's role in the scandal should not cause any harm to national security.' The case will now move forward, pending a government appeal."

Comments

Re:no career ambitions

[bersl2]

Federal judges sit until resignation, death, or impeachment and conviction by the Senate, for this very reason.

Re:More like...

[AuMatar]

Of course, the republicans have set a nice precedent of impeachment proceedings for perjury by the executive branch...

Misleading Ars Article Title

[Mad Martigan]

The Ars article's title was: Federal judge doesn't buy state secrets argument in NSA wiretap case, which I think is a little misleading. Read this passage from State Your Secrets (an article by Louis Fisher appearing in the June, 2006 edition of Legal Times, reprinted courtesy of Steven Aftergood of the Federation of American Scientists)

The responsibility for deciding questions of privilege and access to evidence is central to the role of a judge in conducting a trial.

This authority is well established. In his well-known 1940 treatise on evidence, John Wigmore recognized the existence of "state secrets" but also concluded that the scope of the privilege had to be decided by a judge, not executive officials. He agreed that there "must be a privilege for secrets of State, i.e. matters whose disclosure would endager [sic] the Nation's governmental requirements or its relations of friendship and profit with other nations." Yet he cautioned that this privilege "has been so often improperly invoked and so loosely misapplied that a strict definition of its legitimate limits must be made."

Wigmore considered the claim of "state secrets" so abstract and useless that he divided it into eight categories, including exemptions from giving testimony, attending court, providing evidence by deposition, and disclosing communications by informers to government prosecutors. But on the duty to give evidence, he was unambiguous: "Let it be understood, then, that there is no exemption, for officials as such, or for the Executive as such, from the universal testimonial duty to give evidence in judicial investigations." An exemption from attendance in court "does not involve any concession either of an exemption from the Executive's general testimonial duty to furnish evidence or of a judicial inability to enforce the performance of that duty."

Wigmore came down clearly on which branch should determine the necessity for secrecy. It was the judiciary: "Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coördinate body of government share the confidence? The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege . . . Both principle and policy demand that the determination of the privilege shall be for the Court."

Basically, he's saying that, yes, there are state secrets, but the judiciary -- not the executive -- is responsible for determining how trials involving state secrets proceed. This idea of someone crying 'State Secrets!!!1!!1!one!11!!!' and automatically getting a case tossed out is relatively new, and, as most of us here believe, contrary to the basic premise of the court system.

Re:VAUGHN not JOHN Walker

[Zathrus]

This is ND California, not court of appeals.

Aw crap... in researching the judge I did a more general search and pulled up the wrong judge.

Oddly, the real Judge Vaughn Walker was also appointed by Reagan and then appointed Chief Justice by George H. W. Bush. But, as you state, to the N.D. of California, not to the 2nd Circuit Court of Appeals (which is in an entirely different part of the country).

So this probably was a "career limiting" move if the neo-cons retain control of the Republican party. They certainly won't reward him with a Appelatte court position and the Democrats are unlikely to appoint a conservative judge to the 9th.

Which makes it an even better story really... since it means that he's likely ruling with the law rather than with politics. And, better yet, it means the appeal has to go to the 9th Appellate court, which is unlikely to overturn his decision.

Someone go mod down my earlier post. Thanks.

Re:I Like His Logic

[Beryllium Sphere(tm)]

You say
>they genuinely come across to me as someone who would rather see people DIE as in DEAD than have one single person's phone call monitored that shouldn't have been.
Patrick Henry said
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!"