The limits of executive power are facing another courtroom test in a case that pits the Bush administration against New Jersey officials who wish to investigate the disclosure of phone call records to the National Security Agency.

The Justice Department has filed preemptive lawsuits against New Jersey and three other states (see table below) that issued subpoenas to phone companies believed to have cooperated in the NSA's warrantless surveillance program. The state secrets privilege, the feds claim, bars the states from investigating federal intelligence-gathering.

This litigation has received far less media coverage than the cases filed against the government and phone companies by journalists, consumers and others. But a key hearing in the New Jersey case is scheduled for next week and the state's acting attorney general is arguing that the fed's assertion of the secrets privilege threatens states' rights.

“The United States cannot convert an evidentiary privilege designed to protect from disclosure limited information concerning national security into a federal cause of action to bar the State’s top law enforcement official from carrying out her statutory duties to investigate violations of State law,” Attorney General Anne Milgram says in a motion to dismiss.

New Jersey launched an investigation in May to determine whether ten companies serving New Jersey subscribers disclosed phone call records data to the NSA. State laws protect subscribers from having private information released without notice, but the government filed a declaratory relief action before any of the carriers complied with a subpoena.

“[T]he subpoenas, and the application of underlying state law which they embody, reflect a fundamentally improper intrusion by a state into the most sensitive operations of the Federal Government,” DoJ lawyer Alexander K. Haas says in a motion for summary judgment.

U.S. District Judge Freda L. Wolfson will hear both that motion and the state's motion to dismiss Oct. 2.

A recent federal court precedent appears to favor the government. Calling media reports about the alleged disclosure of phone call records “unconfirmed speculation,” U.S. District Judge Matthew F. Kennelly ruled in July that the state secrets privilege applies to a case filed against AT&T.

But Milgram contends the government has nothing to protect because “the existence of a phone records program has been confirmed by 'parties indisputably situated to disclose' whether the program exists.”

The filing of a preemptive suit, moreover, is a “distortion” of the privilege “designed to protect the Executive Branch from scrutiny,” the attorney general says.

By Matthew Heller
9/24/06