Surveillance Lawsuits Transferred to Judge Skepitcal of Bush Plan

Bob Egelko, Chronicle Staff Writer

A judicial panel on Thursday ordered privacy-rights lawsuits from around the nation, accusing telecommunications companies of collaborating with a Bush administration electronic surveillance program, transferred to a federal judge in San Francisco who has already issued a key ruling against the government.

The decision by the Multi-District Litigation panel affects more than three dozen class-action suits against the likes of AT&T and Verizon, said lawyers for customers who claim that records of their phone calls and e-mails were illegally turned over to the National Security Agency.

The Bush administration and the telephone companies wanted the cases transferred to a federal judge in Washington, D.C. The plaintiffs preferred San Francisco, where Chief U.S. District Judge Vaughn Walker ruled July 20 that a suit against AT&T could proceed despite the government's claim that it would endanger national security. The company and the government are appealing that ruling.

The panel of federal trial and appeals court judges from different states said San Francisco was the better choice because the suit there was filed first, has advanced the furthest and is before a judge "well versed in the issues.'' Walker has already reviewed classified evidence presented by the government in arguing for dismissal of the AT&T suit, a procedure that would have to be duplicated if the cases were sent to Washington, the panel said.

"This is not favorable to the government,'' said Carl Tobias, a University of Richmond law professor in Virginia who has followed the cases. He noted that Thursday's order also transferred appellate review of the cases to the Ninth U.S. Circuit Court of Appeals, which is generally more sympathetic to privacy claims and less deferential to the government than its Washington counterpart.

It was not immediately clear whether the transfer order would also apply to four separate suits filed solely against the government to challenge the surveillance program. A ruling on the legality of the program is pending before a federal judge in Detroit in a suit by the American Civil Liberties Union.

Congressional intervention is also possible. Legislation by Senate Judiciary Committee Chairman Arlen Specter, R-Pa., supported by the administration, would allow the government to transfer all of the cases to a court in Washington, D.C., that meets in secret and hears arguments only from the government, mostly in cases involving spying or terrorism.

The Justice Department did not respond to a request for comment. AT&T and Verizon, which have been publicly noncommittal about their alleged involvement in the program, had little to say.

"AT&T is fully committed to protecting our customers' privacy," said spokesman Walt Sharp. "We do not comment on matters of national security."

Verizon spokesman Robert Varettoni declined comment but cited a statement the company issued in May, which said it had not been asked by the National Security Agency for any customer records -- but left open the possibility that such a request had been made to MCI, its newly acquired long-distance subsidiary.

BellSouth, another defendant, has denied any role in the government program.

The suits have been filed against telecommunications companies in 19 states. The first, filed by AT&T customers in San Francisco in late January, followed a report by USA Today that the companies had given the National Security Agency access to records of tens of millions of calls to screen for possible terrorist contacts. The plaintiffs submitted a statement by a former AT&T engineer who said that equipment installed in a San Francisco office in 2003 allowed the federal agency to intercept worldwide e-mail traffic.

President Bush acknowledged last December, in response to a New York Times story, that he had authorized the National Security Agency shortly after the Sept. 11, 2001, terrorist attacks to wiretap calls between Americans and suspected terrorists abroad without the warrants required by federal law. He claimed he had the authority as commander in chief to override the congressional mandate for a warrant.

But Bush and his aides have refused to confirm telephone company participation in the surveillance program and have argued that any such disclosure would aid terrorists. Government lawyers asked Walker and judges in at least two other cases to dismiss the lawsuits, contending that the entire subject of each case was a state secret.

Walker, an appointee of President Bush, ruled last month that the existence of the surveillance program and the possibility of AT&T's participation were not state secrets, because the company's size, history and public statements indicated that it was likely to cooperate in such a program.

He refused to dismiss claims of illegal data-sharing despite the absence of similar public statements, saying the plaintiffs may turn up evidence that illuminates AT&T's role. Walker also said AT&T's alleged "dragnet'' program, sweeping up all calls and e-mails for relay to the National Security Agency, would violate customers' rights regardless of whether the contents of any messages were actually examined.

Five days later, a federal judge in Chicago dismissed another suit against AT&T, filed by the ACLU on behalf of author Studs Terkel and other customers. Judge Matthew Kennelly said the secrecy of the program prevented the company from confirming or denying that it shared records with the government, and thus made it impossible for the customers to prove that their records were furnished illegally.

But ACLU attorney Adam Schwartz noted Thursday that Kennelly did not dismiss the suit permanently, and instead allowed the customers to file an amended suit that alleged their communications were illegally intercepted -- the distinction that Walker found crucial in allowing the San Francisco suit to proceed. With the Chicago suit now transferred to Walker, Schwartz said he expects the case to be revived.

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