Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/10

 in which the state secrets privilege has been invoked. In May of this year, a district court in the Eastern District of Virginia addressed the state secrets privilege in El-Masri v. Tenet, 2006 WL 1391390, (E.D. Va. May 12, 2006). In El-Masri, the plaintiff, a German citizen of Lebanese descent, sued the former director of the CIA and others, for their alleged involvement in a program called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff's claims, because they could not be fairly litigated without the disclosure of state secrets. Id. at 6.

In Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006), which is akin to our inquiry in the instant case, the plaintiffs brought suit, alleging that AT & T Corporation was collaborating with the NSA in a warrantless surveillance program, which illegally tracked the domestic and foreign communications and communication records of millions of Americans. Id. at 1. The United States intervened and moved that the case be dismissed based on the state secrets privilege. Id. Before applying the privilege to the plaintiffs' claims, the court first examined the information that had already been exposed to the public, which is essentially the same information that has been revealed in the instant case. District Court Judge Vaughn Walker found that the Government had admitted: "...it monitors "contents of communications where * * * one party to the communication is outside the United States and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." (citations omitted). Hepting, 2006 WL" [*11]