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DOJ still wants spy suit against Verizon tossed

Attorneys for class action suits accusing the telco of illicit NSA cooperation say a senior intelligence official's recent statements bolster their arguments. The feds disagree.

Much has been made of an El Paso Times interview last week in which Director of National Intelligence Mike McConnell acknowledged the "private sector" has assisted in the president's so-called Terrorist Surveillance Program. Some opponents of the phone-call-and-email-snooping regime promptly pounced on the remarks, suggesting they implicate telephone companies like AT&T and Verizon, which have been accused in numerous lawsuits of consumer privacy violations and illicit cooperation with the Bush administration.

"Now if you play out the suits at the value they're claimed, it would bankrupt these companies," McConnell told the paper, according to a transcript. He didn't, however, mention any firms by name.

Excerpt from the Justice Department's August 29 brief in Verizon/MCI case

Arguably revelatory statements like those have prompted new questions about the Bush administration's ability to continue evoking the "state secrets" privilege in the various cases against the telcos, which are currently pending before U.S District Judge Vaughn Walker in San Francisco federal court.

The McConnell interview may play a role in Walker's courtroom on Thursday afternoon, when he's scheduled to hear arguments about dismissal of a set of now-consolidated class action suits against Verizon and then-separate MCI. Those companies have been accused of operating a content surveillance "dragnet" and of turning over subscriber records to the NSA without a warrant. (Verizon, for its part, has publicly denied providing such information to the spy agency.)

Attorneys for the plaintiffs in those suits recently submitted the McConnell transcript for the court record, in an attempt to blunt the government's contentions that proceeding with the case will endanger national security by exposing state secrets.

Not so, the Bush administration countered in a Wednesday court filing seen by CNET The Justice Department attorneys argue McConnell's statements did nothing to change the fact that it hasn't ever confirmed any of the activities alleged by the class action plaintiffs--and has, in fact, denied the existence of any sort of "dragnet." The arguments made by the class action plaintiffs rest on nothing but "speculation," the attorneys wrote. In the Justice Department's view, litigating the case would still require exposing how the program actually does work--which, it says, would in turn endanger national security.

Verizon declined to comment, but its attorneys have also argued in recent court filings that the state secrets privilege must apply. Walker, for his part, has so far declined to grant that immunity in a related high-profile case against AT&T, and a federal appeals court panel recently indicated unwillingness to side with the government on that front.

Update: Click here for CNET's coverage of Thursday's court arguments about dismissal of this case.