40 lawsuits drive immunity push

Of course, these lawsuits are consolidated into five before a judge in San Francisco, home of the Ninth Circuit, known for being ultra-liberal and oft-reversed. Let's assume that any of these cases are allowed to continue. Eventually they will be appealed to the Ninth Circuit, unless they are somehow moved to a more convenient (and conservative) location, such as the DC or Seventh Circuits...but we'll stick with the Ninth for now.

All discovery has been blocked so far by the administration's argument, still awaiting court resolution, that the suits are barred because they involve state secrets. What tantalizing clues about the surveillance have emerged so far have come from affidavits entered into the record by the plaintiffs.

If the AT&T case is allowed to proceed, for example, the plaintiffs will ask a judge to consider documents provided by a former AT&T technician, Mark Klein, that suggest a massive effort by the National Security Agency to tap into the backbone of the Internet to retrieve millions of e-mails and other exclusively domestic communications.

The government, in a brief before the U.S. Court of Appeals for the 9th Circuit in San Francisco, has denied the existence of any "dragnet" surveillance program. In the cases against the telecommunications firms, Justice Department attorneys have argued that merely to confirm or deny any "intelligence" relationship with AT&T or any company "could reasonably be expected to cause exceptionally grave damage to the national security."

Though the carriers have argued that they are barred from defending themselves against the allegations because of the government's invocation of the state-secrets privilege, at least one carrier, Verizon, has stated in regulatory filings that the cases against it are without merit.

Which one is it, Verizon? Immune, or without merit? That could be a problem if this goes further...