Legal Maneuvering Or Legitimate Concern?

NSA Cases May Hinge on Issue of Standing

This story is interesting. The claim is being made that the mere presence of warrantless wiretapping is creating a chilling effect on the creative process of a novelist. While I think there are more mainstream civil liberty issues to consider, like the chilling effect on political speech, it does seem to have risen to the level of placing a chilling effect on the arts and humanities. But now comes the US Government, under the leadership of an anti-constitutionalist attorney general, challenging the legal standing of this plaintiff.

Carolyn Jewel says the federal government's warrantless wiretapping program is giving her writer's block.

"I have recently begun to write in a new genre (action and futuristic romance)," the Petaluma, Calif., database-administrator-cum-novelist -- and named plaintiff in a class action against AT&T for cooperating with secret government eavesdropping -- wrote in court papers earlier this year.

"I feel that certain plots or subplots that would otherwise be of significant interest to me may be unwise since they would require research into weapons, arms and military and paramilitary operations. As a result, I do not plan to use my Worldnet service to do this research," continued Jewel, the only AT&T named plaintiff to specifically state how she was affected by the wiretaps.

"I suppose that's a claim," said Rory Little, a professor at Hastings College of the Law. "It's not as strong as saying they were definitely wiretapped."

A lawyer for the plaintiffs said Jewel and other AT&T customers suffered real harm.

"She actually chose not to pursue certain areas of writing," said Lee Tien, a lawyer with the Electronic Frontier Foundation.

Lawyers for AT&T and the government are trying to convince U.S. District Judge Vaughn Walker that chilling effects on customers -- such as Jewel's reticence to research upcoming books (one of which, "Rake," promises: "Romantic sensualist meets widowed novelist. Hot. Hot. Hot. Proposal is done and with my agent," according to her Web site, carolynjewel.com) -- don't amount to enough harm to give them standing.

While Walker mulls over the standing question, a similar case in Oregon federal court probably won't have that problem.

The suit, which has received less recent publicity than the AT&T class action, has a more direct complaint -- and fewer standing issues.

In late February, the Al-Haramain Islamic Foundation says it was directly harmed through illegal wiretaps -- and it has proof, according to court filings.

"This case is unique among the various pending lawsuits challenging the president's warrantless electronic surveillance program in that only these plaintiffs possess incontrovertible proof -- the document filed under seal -- that they were victims of the president's program, and thus have standing to sue," wrote Thomas Nelson, a lawyer for Al-Haramain, in papers filed Monday.

Jon Eisenberg, an Oakland, Calif., lawyer and Nelson's co-counsel, said he was "immediately excited to see this case because there's standing." Eisenberg said he expects core issues in the case to be litigated faster than in the AT&T suit.

"They have a standing issue to overcome that we don't have," he said. "They're seeking to say the administration violated the law without having a specific instance of violation, which spills over into policy. That's problematic."

Tien said he expects Walker to rule that the class plaintiff have standing nonetheless. But in the meantime, he and the Oregon lawyers are facing a similar set of problems posed by government lawyers.

In both cases, the government has insisted that documents at the core of the case, as well as government pleadings, should remain confidential. Anthony Coppolino, the lead Department of Justice attorney in both cases, could not be reached by press time.

In the AT&T suit, the key evidence is documents provided by a former AT&T engineer that, plaintiffs lawyers say, show communications were routed through government computers. The documents are filed under seal, and Walker has agreed to keep them in a secure case as the litigation continues.

The most important piece of evidence in the Oregon suit is a secret document accidentally disclosed by the FBI in 2004 through discovery in another lawsuit. It's currently being held in a secure location in Seattle, despite efforts by the federal government to take it back.

The judges in both suits are now trying to decide whether that information should remain secret -- and whether to consider government motions kept concealed from plaintiffs lawyers. The secret papers, government lawyers said, argue that the suits should be thrown out because they jeopardize state secrets.

In a hearing in the AT&T suit last week, Walker seemed disturbed by the notion that plaintiffs would be unable to see their opponents' arguments, and asked for briefing on the issue. Similar briefs have been submitted in the Oregon case, too.

In both suits, defense lawyers say the Justice Department has a longstanding right to submit ex parte, in camera documents in sensitive cases.

"Contrary to plaintiffs' arguments, AT&T does not believe that an assertion of state secrets may blithely be dismissed without even considering the basis for it," wrote lawyers for AT&T.

Such arguments don't sit well for the plaintiffs in either case. As lawyers for the Oregon plaintiffs wrote, "Secret court filings are repugnant to a free society."

As the issues continue to be litigated, the judges in both suits will have to decide whether to open the heretofore secret documents, whether plaintiffs have standing, and if the suits would indeed unearth secrets vital to national security.

In the AT&T case, plaintiffs are hoping that Walker's decision on these issues will ultimately lead him to consider their motion for an injunction that would keep the government out of AT&T's network.

Until that decision is made this summer, Jewel -- judging by her Web site -- seems to have plenty to work on that won't bring government suspicion upon her.

One title in development is called "The Barbarian."

In that book, her Web site says, "a Highlander ends up married to the daughter of an English lord. He speaks only Gaelic and she doesn't. She thinks he's the muscle, not the bridegroom." That book, she wrote, will only require her to study Gaelic.