Government Cannot Shirk Accountability for Illegal Surveillance by Claiming State Secrets, ACLU Tells Chicago Judge
CONTACT: media@aclu.org
CHICAGO -- In a rare oral argument, the American Civil Liberties Union of Illinois today asked a federal court judge in Chicago to block the government's effort to shield telephone giant AT&T from accountability for sharing the telephone records of subscribers with the National Security Agency without lawful authorization. The ACLU alleges that AT&T violated the Electronic Communications Privacy Act of 1986 (EPCA) by providing the government with records of customers across Illinois.
In an extraordinary move, the United States Department of Justice intervened
in the case, urging the case be dismissed. The government asserts that if
AT&T reveals any information whatsoever about turning telephone records over
to the government - even information already detailed by numerous media outlets
- it will reveal "state secrets."
"The court needs to take control of this
case to ensure that fair procedures are afforded to our clients," Harvey
Grossman, ACLU of Illinois Legal Director told the court today.
The argument
before U.S. District Court Judge Matthew Kennelly marks the third time in recent
weeks that the government has argued the state secrets privilege assertion to
urge a case be dismissed.
Recently, the Justice Department made the argument in
a case brought by the Electronic Frontier Foundation in San Francisco
challenging a similar AT&T program of turning over both telephone records
and the content of calls to the government. On Monday, July 16, the government
made the same argument in Detroit in the ACLU's challenge to the NSA's
surveillance of domestic telephone calls without a warrant.
Grossman said
that the government's invocation of the state secrets privilege was an attempt
to "immunize" government activity in the open-ended war on terror from scrutiny
by independent judicial officers. Grossman asked Judge Kennelly to allow the
case to move forward in a "step-by-step" fashion that protects intelligence
gathering.
History has shown that the state secrets privilege has been used illegitimately to cover up wrongdoing. In a 1953 case, United States v. Reynolds, the government had claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security. Nearly a half-century later, the truth came out: the accident report contained no state secrets, but instead confirmed that the cause of the crash was faulty maintenance of the B-29 fleet.
The case argued today was Terkel v. AT&T.
Celebrated Chicago author Studs Terkel and prominent leaders in the medical,
legal, political and faith communities filed the lawsuit in May charging that
AT&T violated their privacy by secretly sharing the telephone records of
millions of Americans with the government. The secret program was revealed in a
May 11, 2006 article in USA Today. In addition to Terkel, the other plaintiffs
in the case include: Barbara Flynn Currie, Majority Leader of the Illinois House
of Representatives; Rabbi Gary Gerson of Oak Park Temple; Professor Diane
Geraghty, Director of the Civitas ChildLaw Center at Loyola University School of
Law, Chicago; James Montgomery, former Corporation Counsel for the City of
Chicago; and Dr. Quinten Young, a physician and advocate for health care
reform.
"There is no 'secret' at risk in this case. Terrorists know that
phone conversations and records are monitored. We hope the court will allow our
clients to determine if AT&T is complying with the law," added Grossman.
Assisting the ACLU of Illinois in the case are Chicago attorneys Marc Beem,
Daniel Feeney and Zachary Freeman of Miller, Shakman & Beem; F. Thomas
Hecht, James M. Carlson and Michael Philippi of Ungarett & Harris; and
William Hooks of Hooks Law Offices.
For more information on this case, as well as the ACLU lawsuit filed in Michigan, go to www.aclu.org/nsaspying.