Trenton,
NJ – Acting Attorney General Anne
Milgram declares in a brief filed in federal
court that the United States Justice Department’s
move to block a state investigation into
whether telephone companies provided call
records to the National Security Agency
without a court warrant interferes with
the Attorney General’s ability to
investigate violations of New Jersey law.
The
state’s brief, which seeks dismissal
of the federal government’s suit,
was filed late Friday in U.S. District Court
in Trenton in response to an attempt by
the Justice Department to quash administrative
subpoenas issued in May by former Attorney
General Zulima V. Farber and the State Division
of Consumer Affairs. State officials sought
to determine whether phone companies providing
landline and cellular services had violated
state consumer protection laws by providing
individual call history data to the NSA.
The
Justice Department’s suit seeks to
throw “an impenetrable cloak insulating
the federal government’s domestic
surveillance activities from all judicial
scrutiny,’’ Milgram said.
Invoking
a state secrets privilege, as the Justice
Department does, “transforms the privilege
from a shield against the disclosure of
sensitive information into a sword through
which the Executive Branch can defeat any
attempt at scrutiny from the judiciary or
state officials. This distortion of the
privilege is unwarranted,’’
the brief states, and would “contravene
the system of checks and balances instituted
by our Founding Fathers.’’
The
subpoenas were issued to ten telecommunications
companies providing services to New Jersey
consumers after published news reports detailed
an NSA data mining project that involved
the disclosure to the NSA of call records
for millions of Americans.
The disclosure of telephone call records
to the NSA, including any disclosure made
without a court order or without notice
to individual phone subscribers could violate
New Jersey consumer protection statutes.
The
Justice Department sued Farber, Kim Ricketts,
the former director of consumer affairs,
and Cathleen O’Donnell, the deputy
attorney who issued the subpoenas on June
14, the day before a deadline for the telephone
companies to comply with the subpoenas,
claiming that compliance would threaten
national security. The Justice Department
argued that even acknowledging the existence
of the NSA surveillance program threatened
state secrets.
But
in its brief the state declares, “There
is no federal statute that prohibits a state
official from initiating a state legal proceeding
seeking information relevant to potential
violations of state law.’’
The
state asks U.S. District Court Judge Freda
Wolfson to dismiss Justice Department arguments
and argues that the federal government is
intruding on state sovereignty. The state
also claims the legal dispute belongs in
state court, rather than federal court,
because the Justice Department sought to
block a state investigation.
In
its brief, the state cast doubt on the Justice
Department’s argument that national
security is at stake because the surveillance
program was widely acknowledged by federal
officials and members of Congress. “There
is no secret for the state secrets privilege
to protect,’’ the brief states.
The
state had issued administrative subpoenas
to AT&T, Cingular Wireless, Nextel,
Qwest, Sprint, United Telephone Company
of New Jersey, Verizon Communications, Verizon
Wireless, Virgin Mobile USA, and Vonage.
Among
other things, the subpoenas sought all orders
or warrants which required the telecommunication
companies to furnish telephone call records
to the NSA – in other words, how the
information was requested -- information
on individuals whose call history was provided
to the NSA, and any documents or contracts
related to the carriers’ ability to
disclose subscriber information to third
parties. Only Vonage and Verizon Wireless
responded to the subpoenas providing sample
subscriber agreements and stating they possess
no documents responsive to the requests.
In
its brief, the state also argued that the
Attorney General is not seeking to disclose
alleged state secrets, and the Justice Department
is attempting to preclude any judicial review
of the scope and validity of the government’s
claim of privilege.
Also
on the brief were Assistant Attorney General
Patrick DeAlmeida, Senior Deputy Attorney
General Larry Etzweiler, and Deputy Attorneys
General Lorraine Rak, Joseph Fanaroff and
Angela Gunter Foster. View
a copy of the brief filed with the U.S.
District Court (160k pdf).
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