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 reported in 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 today 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 DOJ 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 10, the government advanced the same contention in the ACLU's challenge to the NSA's surveillance of domestic telephone calls without a warrant.
Grossman noted 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 telephone giant 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 Mr. Terkel, the other plaintiffs in the case filed in federal district court in Chicago today 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 Child Law 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.
Chicago attorneys Marc Beem, Daniel Feeney and Zachary Freeman of the law firm Miller, Shakman & Beem, and F. Thomas Hecht, James M. Carlson and Michael Philippi of Ungarett & Harris and William Hooks of the Hooks Law Offices are assisting the ACLU of Illinois in the case.