A White House Victory, Sorta, on the NSA Program

Even when the White House wins in court these days on the terror-war front it feels like a loss. So even though U.S. District Judge Matthew F. Kennelly accepted the government's "state secrets" argument and dismissed a lawsuit against AT&T over whatever role it plays in the National Security Agency's domestic surveillance program, surely the feds aren't smiling for real as they review the judge's carefully crafted 40-page ruling. That's because it is full of ominous signs for the government-- signs that the feds are in for trouble as companion lawsuits proceed in federal court in Illinois.

First, Judge Kennelly made it clear that there were important factual differences between his case and the case decided last week by a federal trial judge in California, who rejected the same argument offered by the feds. In the Illinois case, Judge Kennelly wrote, the plaintiffs had only "challenged the alleged disclosure of records regarding customer communications" (emphasis in original) while in the California case the plaintiffs had challenged the "interception of the contents of communications." Also, the judge noted, in the Illinois case the plaintiffs were asking for an injunction-- future relief-- while the California plaintiffs had asked also for "damages for past disclosures." Those differences, he wrote, allowed him to come to a different conclusion than his California counterpart.

Judge Kennelly also reminded the government that he has before him two other similar cases which are both more factually consistent with the California case. "Because of the differences between those cases and this one," he wrote, "our ruling in this case is not necessarily dispositive of the other cases." Later in his ruling, he noted that he had "rejected some of the claims made by the government" in its ex parte (where the plaintiffs do not get to see the filing) and in camera (in the judge's office and not in court) submissions and had "expressed skepticism about others."

Even when he accepted the arguments offered by the government, Judge Kennelly did so grudgingly. For example, even when he concluded "that this case implicates state secrets," he said he had "done so after carefully evaluating the government's claimed justifications" instead of merely dismissing the case "based solely on the government's conclusory statements without any real judicial review of whether this case in fact implicates state secrets."

In the end, Judge Kennelly dismissed the lawsuit because he was not convinced that either the government or AT&T had publicly disclosed the existence of a phone-records-collection effort (as opposed to the publicly disclosed content-surveillance effort) so that there still was a "state secret" to be kept. But "nothing in this opinion," the judge wrote, "prevents the plaintiffs from using of (sic) the legislative proc`ess, not to mention their right to free speech, to seek further inquiry by the executive and legislative branches into the allegations in their complaint."

Doesn't sound like a judge who is firmly on board with what the government is doing, right? Right.

By Andrew Cohen |  July 26, 2006; 11:00 AM ET
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