Attorney hopes San Francisco judge's spying decision halts Congress

By Jason Bennert, Bay City News Service

July 20, 2006

SAN FRANCISCO (BCN) - An Electronic Frontier Foundation attorney hopes today's decision by a federal judge in a lawsuit against the Bush administration's domestic eavesdropping program will derail efforts to have the program's constitutionality decided by a secret federal court.

U.S. District Court Judge Vaughn Walker refused to dismiss the foundation's lawsuit despite claims by the federal government that allowing the case to proceed would endanger national security and expose state secrets. He ruled that a "state secrets privilege'' does not apply since the government has publicly admitted to monitoring domestic phone calls and Internet traffic.

"It might appear that none of the subject matter in this litigation could be considered a secret given that the alleged surveillance programs have been so widely reported in the media,'' Walker said in his opinion.

Foundation attorney Cindy Cohn wants Congress to take notice of Walker's decision. It is currently considering a bill by Sen. Arlen Specter, R-Pa., that would allow questions about the program's constitutionality to be decided by the Foreign Intelligence Surveillance Court, which is closed to the public.

"We're hopeful that today's decision will give Congress pause,'' Cohn said. "Shuffling them off to a secret court is not the way to go.''

The foundation's case is one of approximately 35 nationally, including at least five in California, that challenge the domestic spying program. A hearing is scheduled in Chicago later this month to decide whether to consolidate all of the cases under one judge. While the foundation does not support consolidation, it believes Walker should be the sole judge if consolidation happens.

"They should give them to Judge Walker because he's so much further along in his thinking about the issue than anyone else,'' Cohn said.

Walker is the first federal judge to issue a ruling on the "state secrets privilege,'' according to Cohn.

The parties are scheduled to return to Walker's courtroom on Aug. 8 to discuss discovery issues and the appointment of an expert to assist Walker with the secrecy and national security issues in the case.

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