Trenton,
N.J. -- In papers filed in U.S. District
Court in Trenton today, Attorney General
Stuart Rabner said the federal government’s
suit to preclude New Jersey officials from
issuing subpoenas to determine whether telecommunications
companies violated consumer and privacy
rights by delivering phone calling records
to the National Security Agency should be
dismissed.
In
a brief filed in response to the U.S. Justice
Department’s suit to quash the state
investigation, the Attorney General’s
Office rejected federal arguments that the
legal dispute belonged in federal court.
The Attorney General’s Office argued
that the United States cannot file suit
in federal court to preclude a state’s
chief law enforcement officer from asking
for information necessary to enforce New
Jersey law.
“It
is one thing for the federal government
to invoke the state secrets privilege as
a shield during an ongoing proceeding to
prevent disclosure of information that threatens
national security,’’ the brief
states. “It is quite another to invoke
the privilege as a sword in an attempt to
establish disputed facts and demand summary
relief in the form of a permanent injunction
against a state official seeking to enforce
state law.’’
The
United States was attempting to preclude
scrutiny of “legally suspect behavior
in conjunction with federal officials,’’
the brief continues. “What plaintiff
seeks to prevent in this suit is not the
disclosure of protected information, but
the very act of asking for that information,
as well as any judicial scrutiny –
either in the state courts or this court
– of whether the United States’
claim of privilege and grave threats to
national security are, in fact, valid.’’
“According
to the United States, no one, not even a
state’s chief law enforcement officer,
can question whether a party’s participation
with the federal government in what has
been reported to be a massive intrusion
on individual privacy violates state law.
Surely, if Congress intended to vest such
sweeping powers in the President to the
derogation of state officials and the detriment
of the general public’s privacy rights,
it would have stated so expressly. There
is no statement of intent anywhere in federal
law that would preclude the Attorney General’s
investigation.’’
The
Attorney General’s office issued subpoenas
in May 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.
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.
The
Justice Department sued in federal court
on June 14, the day before a deadline for
the telephone companies to comply with the
subpoenas. The Justice Department claimed
that compliance would threaten national
security and argued that even acknowledging
the existence of the NSA surveillance program
threatened state secrets.
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.
Also
on the brief filed today were Assistant
Attorney General Patrick DeAlmeida, Senior
Deputy Attorney General Larry Etzweiler,
and Deputy Attorney General Joseph Fanaroff.
>> NSA
Brief (45k pdf) plugin
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