SAN FRANCISCO--Opponents of a controversial surveillance program told a federal judge on Thursday that the government has admitted to eavesdropping on private communications of American citizens--with the help of several telecoms--and must not be allowed to hide behind executive privilege.
Attorneys representing now consolidated class-action lawsuits against Verizon Communications and the government for allegedly violating federal privacy laws faced off with lawyers from the carriers and the Department of Justice here Thursday.
The government wants the case thrown out and told U.S. District Judge Vaughn Walker that the other side doesn't know whether federal laws were broken because the alleged existence of a surveillance program centered on collecting and mining telephone subscribers' call records hasn't been confirmed.
The Verizon plaintiffs countered by telling Walker about statements made last week by Director of National Intelligence Mike McConnell in an El Paso Times interview, in which he acknowledged the "private sector" has assisted in the government's surveillance program.
Verizon, and in a related case, AT&T, have been accused of turning over customer records to the government in violation of privacy laws.
While the plaintiffs leaders have also disclosed the existence of a surveillance program, Walker seemed skeptical about whether plaintiffs could "hang their hat" on a handful of statements to the media. He questioned whether those statements were enough to claim the government had confirmed they were operating a spy operation with the help of the telecoms.
The government's lawyers argued that the statements were certainly not enough for a confirmation. That needed to come from someone in the executive branch.
"There has been no confirmation of that program by the president, not by the attorney general, or the director of national intelligence," Anthony Coppolino, special counsel for the DOJ, told Walker. "That alone requires dismissal."
In the AT&T case, which Walker is also presiding over, the judge rejected that argument from the government. He allowed the case to continue and the DOJ has appealed his decision to the 9th Circuit Court of Appeals.
Walker said Thursday that before he rules on the government's motion to dismiss in Verizon, he wants to hear what the 9th Circuit has to say about AT&T.
The plaintiffs' attorneys, meanwhile, hammered away at the government's argument that the executive branch is also immune from such litigation because of the need-to-protect-state-secrets privilege. The plaintiffs argument that such privileges aren't "blank checks."
"There is no limit to state secrets the way the government sees it," one of the plaintiff's attorneys told the court. "In the government's view, there is nothing to stop the president from bugging every American home tomorrow."