Appeals court's ruling may aid spy suits against AT&T, Verizon

A federal appeals court may have given a boost on Friday to high-profile lawsuits alleging that AT&T and other telecommunications companies illegally opened their networks to the National Security Agency.

In a case involving an Islamic charity, the 9th Circuit Court of Appeals ruled that it would be premature to pull the plug on the group's lawsuit based on the Bush administration's fears that court proceedings would necessarily disclose "state secrets."

That case is called Al-Haramain Islamic Foundation v. President Bush. It's unusual because the now-defunct foundation reportedly found, as the result of the government accidentally sending it a top-secret document, that it had been the subject of illegal surveillance.

The wording of the 9th Circuit's opinion on Friday could place over two dozen cases against telephone companies on somewhat more solid ground than before. Those cases include the Electronic Frontier Foundation's lawsuit against AT&T--which is awaiting a ruling at any time from the 9th Circuit--and the ACLU of Oregon's case against Verizon.

The Bush administration's attorneys had argued that those lawsuits must be dismissed because of the "state secrets" privilege, which lets the government short-circuit lawsuits that would endanger national security.

But in the Al-Haramain case, the 9th Circuit pointed to public disclosures about the NSA program that top administration officials had made voluntarily. "The government's many attempts to assuage citizens' fears that they have not been surveilled now doom the government's assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege," the court said.

Although EFF's suit against AT&T is separate from this case, the logic suggests that the 9th Circuit is inclined to let that one proceed as well. In other words, EFF and its fellow litigants stand a good chance of overcoming their first hurdle before the appeals court, though there are still plenty of others that could trip them up along the way.

Friday's ruling, however, didn't turn out as well for Al-Haramain. The 9th Circuit said the foundation's lawyers were prohibited from using their recollections of the top secret document, which the FBI had belatedly repossessed, in court. The district judge had been willing to allow those recollections.

The only way the case can now proceed is if the courts agree that a portion of the Foreign Intelligence Surveillance Act overrules the state secrets privilege--a question that the 9th Circuit directed the district court to evaluate.