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Judges weigh combining US telecom spying suits

Andrew Stern / Reuters | July 28 2006

Both sides in lawsuits alleging that telephone companies unlawfully cooperated in a secret U.S. government spying program argued on Thursday that a federal court panel should give the cases to a single judge.

U.S. Deputy Assistant Attorney General Carl Nichols urged the panel to transfer the roughly two-dozen cases filed around the United States to the federal court in Washington, D.C., while a plaintiff's attorney asked to have a San Francisco judge handle the class-action cases.

Nichols said consolidating the case will let the government ask that the suits be dismissed collectively because they might disclose secrets that could jeopardize national security.

With suits in numerous courts, "we are faced with pressing the state secrets privilege around the country," Nichols told the Judicial Panel on Multidistrict Litigation.

He said that would be time-consuming and that "transporting these materials through airports ... increases the risk of disclosure."

The panel is expected to render a decision within three to six weeks.

The government has already intervened in several cases against AT&T, Verizon Communications, and BellSouth Corp., asserting a "military and state secrets privilege" to argue that they should be thrown out.

Elaborate measures had to be taken to brief each judge on classified information, including affidavits from the U.S. intelligence chief John Negroponte and National Security Agency head Lt. Gen. Keith Alexander, Nichols said.

Earlier this month, U.S. District Judge Vaughn Walker in San Francisco denied the government's dismissal motion. He said the government had disclosed the spying program, involving intercepts of calls made overseas, and AT&T had admitted its cooperation.

President Bush has described the program as necessary to ferret out potential terrorist plots.

The plaintiffs' lawyer in the San Francisco case urged the panel to give the consolidated cases to Walker, who has also invited the government to appeal his earlier ruling against a dismissal.

"Judge Walker has already seen the classified information," said attorney Cindy Cohn of the Electronic Frontier Foundation. If the cases are transferred to Washington, a new judge would have to be briefed, which Cohn said would increase the risk that secrets could be revealed.

Cohn said after the hearing that the suit simply sought to stop the sharing of private telephone conversations with the government without benefit of court-approved warrants.

She said violations of telecommunications law call for fines of up to $1,000 for each violation, which could quickly mount up to billions of dollars given the millions of telephone subscribers as potential plaintiffs.

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