001910	02bankston_wmp_a_16.wma
000000	ANN BRICK: Thank you Kevin and thank you Stephanie and Eric, really appreciate the invitation and thank you to all of you for showing up today to listen.
000016	What I'm going to do is tell you a little bit about the California cases, the state court cases that the ACLU, the three California affiliates filed.
000027	Tell you a little bit more about ACLU versus the National Security Agency, the first case that was filed and the case in which there is now a permanent injunction, which is on appeal to the Sixth Circuit.
000045	Talk a little bit about the MDL process.
000047	I especially want to focus on the kinds of things that are at stake in these cases and how they all fit together in what the government, when it talks about state secrets, would say is all a big mosaic.
000103	Particularly for those of you who want to be doing social justice litigation, I think it's helpful to see how that all fits together.
000114	After the telephone records stories broke in USA Today in May of this year
000121	even though EFF had very correctly picked up on the fact that it looked like the telephone companies were turning over customer calling records
000133	in addition to allowing the government to engage in this targeted intercepts of domestic to foreign phone calls and emails and vacuuming up all of these other calls and data mining it
000147	the USA Today articles made it very clear that the scope of what was going on with telephone customer calling records was enormous and extremely troubling.
000201	We looked at that and said is there a gap in what's going on.
000207	We've got the lawsuit against the government, ACLU versus NSA, and the Center for Constitutional Rights cases and then of course they all harm my main case
000218	which is a little different because it's very focused.
000223	We have the EFF suit, the Hepting suit, which really shed a lot of light on this broader vacuuming up of emails and domestic to international phone calls much more broadly.
000245	And there were suits being filed all over the country by plaintiff's lawyers seeking damages for the turnover of telephone calling records, but those suits are all based essentially on federal law.
000258	And California has its own very important privacy provision in Article 1 Section 1 of the California Constitution.
000307	And in lots of ways it is more protective of privacy than is the Federal Constitution.
000317	In particular for example in the area of telephone calling records, California Supreme Court has held that records in the hands of a third party are not protected by the Fourth Amendment.
000330	The California Supreme Court has actually held, as a matter of California law, that those kinds of records are protected from warrantless turnovers to the government
000344	and that in fact California's cognate Fourth Amendment processes have to be complied with before telephone calling records can be turned over to state agencies.
000356	So we've got this nice Article 1 Section 1 claim going after the telephone companies.
000403	And in addition the state Public Utilities Code has a very specific provision that says telephone companies may not turn over their customers' calling records
000417	without either the written consent of the customers or some sort of court authorization.
000424	Now obviously neither one of those conditions was complied with when the telephone companies turned over all of the customer calling records to the NSA.
000436	So we brought a lawsuit.
000438	We actually brought two lawsuits, one against AT&T and one against Verizon MCI in state court alleging violations only of state law because this is a more protective form.
000453	It gives another court an opportunity to look at the state secrets issue and we felt that this sort of rounded out the litigation scene.
000505	We have a wonderful group of plaintiffs, one of whom is sitting in the back of the room Professor Margaret Russell who teaches here at the law school and who is a former chair of our board.
000517	Another one of our plaintiffs is former Congress member Tom Campbell who is also from this neck of the woods.
000525	We're representing attorneys, we're representing lawyers, we're representing journalists.
000532	And it's very important in terms of who your plaintiffs are when you want to make the case like this
000541	because it's not enough just to show that it's a violation of the law to turn over the customer calling records.
000549	You need to show what is the invasion of privacy that's taking place here.
000554	Well, it's easy to see when you look at this group of plaintiffs.
000558	For example as you know from what's been in the press for the last six months, the government is very, very interested in finding out the sources of various pieces of information
000610	that journalists have been publishing whether it's the New York Times revelation of this surveillance that's an issue in all of our cases
000621	or whether it's the source of the grand jury transcript involving Barry Bonds.
000630	And what better way to find out who a journalist's sources are than to get that journalist's calling records and see who is this journalist calling and who is calling the journalist.
000643	So essentially journalists can't use the phone if the government is going to have unfettered access to their calling records without some sort of court authorization.
000655	The same holds true for attorneys who need to talk to clients, who need to talk to witnesses.
000700	The same holds true for psychiatrists many of whom have patients that don't want it known that they are seeking the help of a mental health professional
000710	and want the privacy of the fact that they're making calls to a psychiatrist maintained.
000716	So that's sort of an overview of who our clients are.
000721	And in addition the lawsuit is brought on behalf of all of the members of the three California affiliates.
000728	So we are not a class action, but we have lots and lots of plaintiffs.
000731	When you count in all our members we have over 100,000 members.
000738	And it is not a suit for damages.
000740	It is a suit solely for an injunction.
000746	We filed the cases in state court.
000748	They were removed to federal court not on grounds of diversity because diversity jurisdiction does not exist in our case based on the group of plaintiffs we put together.
000801	We have plaintiffs who share the residency of the defendants.
000805	Rather the defendants have removed on federal question grounds, they say even though we've pled only state law claims
000813	that hidden in our claims are federal questions that give the court jurisdiction.
000819	They also say that they're entitled to remove under a provision that allows someone who is acting under the direction of a federal officer to remove to federal court.
000831	And that's very interesting the way they make that allegation because they say well, we can't either confirm or deny that we're turning over the telephone calling records because that's a state secret.
000843	But if we are turning them over we're acting under the direction of a federal officer.
000848	Well that's just a little too cute they bear the burden of proof on that.
000854	I'm not going to talk to you about the legal ins and outs of those removal issues.
000859	That in itself I learned over the summer as we spent briefing it and it's a course of its own in federal court.
000907	We call it federal courts 301.
000910	But right now we are part of the MDL process.
000914	We are hoping that our motions to remand will be heard soon.
000919	They were stayed while all the other cases were being sent out here.
000923	So those are our cases.
000926	That's everything that's happened in the ACLU telephone state court cases.
000931	And what I want to do in the next five minutes, and then I'm going to give it back to Kevin, is talk a little bit about the merits of the ACLU versus National Security Agency case
000944	because that is a case in which we do have a decision on the merit.
000949	And it illustrates I think some very important principles about why it's important to be litigating cases like this.
000957	The plaintiffs in that case are a group of scholars, journalists, attorneys and others who make calls from here in the United States internationally
001012	to people whom they will freely tell you the government considers to be either involved in terrorism or terrorist suspect.
001022	That doesn't mean the people that they're calling are terrorists.
001025	It means that that's what the government thinks.
001028	And because of that it means that it is way more likely than not that their telephone calls are being intercepted on this targeted surveillance program
001040	where the government not only vacuums up the calls, but is listening to the contents of particular calls.
001046	So that is the underlying claim in those cases.
001050	And as Kevin said the claims are under the First Amendment because you can't engage in journalism, you can't represent your client
001100	you can't engage in all of those speech and associational activities when somebody is listening in and killing your ability to do that.
001111	Obviously it violates the Fourth Amendment.
001113	These calls are being intercepted without any sort of court order, let alone a warrant based on probable cause.
001120	It violates Separation of Powers because the President doesn't have the inherent authority to eavesdrop on your conversations and mine.
001130	In fact the Fourth Amendment explicitly says that he does not.
001135	And Congress has legislated in this area it enacted the Foreign Intelligence Surveillance Act, which specifically lays out a very detailed framework about the kinds of calls that can be intercepted
001151	and the kind of proof that needs to be presented to the FISA court in order to get an order authorizing this kind of interception.
001201	And yet the President has thumbed his nose at what Congress has done.
001209	And then finally of course it does violate FISA then.
001214	So there are three important issues in the case.
001219	The first is the issue of standing.
001221	How many of you have taken any kind of federal courts class?
001226	Okay not too many.
001229	Basically Article 3 says that a court can't hear a case unless there is a real concrete dispute between the plaintiff and the defendant
001239	and the plaintiff has to show that he or she has suffered injury in fact.
001244	The government says two things.
001247	One you don't know whether your phone calls have been intercepted so you haven't been injured, and second a vague chilling effect isn't enough.
001302	So the court looked at that and said this case is different from the cases that have gone before.
001308	Why was it different?
001310	It was different because these particular plaintiffs are making calls to the very people whom the government itself has admitted are the targets of its intercepts.
001324	So its not conjecture that their calls are being intercepted.
001337	Based on what the government has said it's doing, their calls are being intercepted.
001344	And there isn't just some vague chill that's going on here.
001348	But rather these plaintiffs came forward and said my sources in the Middle East and in South Asia will not talk to me because our calls are being intercepted.
001400	That's for the journalists.
001402	Attorneys can't talk to their witnesses or to their clients.
001405	It means in order to have the communications we're talking about, the plaintiffs in the United States have to fly abroad and that is a very concrete injury
001418	and the court agreed and said you do have standing.
001423	That was important for another reason as well because the court pointed out -- now I'm going to go into my former debater mode.
001429	I was at a conference this weekend when people said I used to be a debater, I'm going to talk really fast.
001434	I used to be a debater, I'm going to talk really fast.
001440	But what the court said was beyond the fact you really do have standing, the government can't by way of waving around this secrecy
001450	immunize from court scrutiny the very issue of the legality of its conduct.
001456	And that is a really important point here.
001500	What the courts higher up will do with that, I don't know.
001503	Luckily there are these very strong facts to show standing, but keep that in the back of your mind.
001509	And the Al-Haramain case is a really good example.
001512	That's a case where there's no issue about standing because the government accidentally turned over the materials to the plaintiff that shows that their calls are being intercepted.
001522	But do we want the legality of these programs in an adjudication of that legality to turn on a screw-up by the government, by chance, by happenstance?
001534	Our liberty is too important to let that happen.
001538	So the second big issue once we got past standing was the issue of state secrets.
001546	The court very simply said look the government has come out, it's acknowledged that it's interdoing this targeted intercepting, the government doesn't need state secrets to defend itself.
001557	In fact it called that plain disingenuous because this is a pure question of law 
001603	whether or not the target is surveillance violates the Fourth Amendment, the First Amendment, Separation of Powers and FISA.
001611	And then the court went to the merits and said the answer is yes it violates all of the above.
001617	And I want to take this one last minute though to talk to you about the state secrets privilege and why it's so important that a claim of state secrets, which can be legitimate
001630	obviously some things have to be kept secret, can also be very dangerous.
001635	The case in which the state secrets privilege was first articulated is a case called Reynolds versus the United States.
001643	It involved the plane wreck of an experimental plane.
001646	The pilot's widow sued the government.
001648	The government came in and said oh we can't tell you.
001650	We can't tell you anything about this because this was an experimental plane and if we let this litigation go forward our enemies will know about our latest technology, case dismissed.
001705	Forty years later those documents were finally released and guess what?
001710	The plaintiff's claim, which was that there had been negligent maintenance on the plane, proved to be correct.
001717	And the assertion of the state secrets privilege was simply used to mask government wrongdoing.
001724	On a far more massive scale in a case that took place at the same time the Korematsu case, the government came forward and made the claims we know that led to the internment of the Japanese
001738	and led the United States Supreme Court to say that was okay, something that was not rectified until over 30 years later.
001748	When the Northern District of California court looked at that issue again, it turned out that there were memos that the Justice Department itself had written 
001758	that said that Japanese American citizens and Japanese Americans here in the United States did not pose the threat that had been portrayed to the court.
001812	And that was the underpinning for convincing the Supreme Court to uphold the internment.
001819	The government doesn't always tell us the truth, in fact as often as not, it doesn't.
001824	We get secret surveillance as we've seen as it was revealed in December with the targeted intercepts.
001832	We get secret prisons which now we're told don't exist anymore.
001836	We get secret prisoners both in the ghost detainees and in the government's refusal to tell us who and how many people and from where were detained right after September 11.
001849	So while state secrets may have a legitimate role to play, our role is to make sure that it isn't used to hide and abuse the power.
001857	I'm going to turn it back over to Kevin now and if you want to know about the MDL nuts and bolts we can do it in questions.
001904	Thank you.