DOJ Sues to Block New Jersey Investigation of Phone Companies' Transfer of Phone Call Records

June 14, 2006. The U.S. Department of Justice (DOJ) filed a civil complaint [14 pages in PDF] in U.S. District Court (DNJ) against the the Attorney General of the state of New Jersey, other New Jersey officials, and phone companies that have been subpoenaed by New Jersey. The complaint seeks declaratory judgment that the state lacks authority to issue the subpoenas.

Background. On May 11, 2006, USA Today published an article titled "NSA has massive database of Americans' phone calls". It stated that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth ..."

See also, story titled "Bush Responds to USA Today Story Regarding NSA Database of Phone Calls" Alert No. 1,369, Friday, May 12, 2006, and story titled "BellSouth and Verizon Attack USA Today Story" in TLJ Daily E-Mail Alert No. 1,372, Wednesday, May 17, 2006.

New Jersey's Attorney General, Zulima Farber, issued subpoenas duces tecum (for records) to AT&T, Verizon, Cingular Wireless, Sprint Nextel, and Qwest on May 17, 2006, to investigate this matter.

DOJ Complaint. Count I of the two count complaint alleges that the subpoenas are invalid and preempted by the supremacy clause of the Constitution, unnamed federal laws, and "exclusive control over foreign intelligence gathering activities, national security, the conduct of foreign affairs, and the conduct of military affairs".

The supremacy clause merely provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ..."

Count II alleges that "Providing responses to the Subpoenas would be inconsistent with and would violate federal law including, but not limited to, Executive Order 12958, 18 U.S.C. 798, and 50 U.S.C. 402 note, as well as other applicable federal laws, regulations, and orders."

See, Executive Order 12958, which "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism".

18 U.S.C. 798 is a provision in the criminal code that criminalizes the disclosure of classified information. It makes reference to "communication intelligence activities" and "purposes".

50 U.S.C. 402 pertains to the National Security Council.

The first paragraph of the complaint provides that "the United States seeks to prevent the disclosure of highly confidential and sensitive government information that the defendant officers of the State of New Jersey have sought to obtain from telecommunications carriers without proper authorization from the United States. Compliance with the subpoenas issued by those officers would first place the carriers in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without causing exceptionally grave harm to national security. And if particular carriers are indeed supplying foreign intelligence information to the Federal Government, compliance with the subpoenas would require disclosure of the details of that activity. The defendant state officers' attempts to obtain such information are invalid under the Supremacy Clause of the United States Constitution and are preempted by the United States Constitution and various federal statutes. This Court should therefore enter a declaratory judgment that the State Defendants do not have the authority to seek confidential and sensitive federal government information and thus cannot enforce the subpoenas they have served on the telecommunications carriers."

The NSA program disclosed by the New York Times last December, and subsequently partially described by federal officials, involves intercepts of communications where one party is inside the U.S. and one party is outside of the U.S., and where one party is suspected of having some connection to terrorism. That is, the intercepts are terrorism related, even though persons inside the U.S. are affected.

However, the program disclosed by USA Today in May involves extensive databases of phone call data. Most of the data collected involves communications unrelated to terrorism. The DOJ now asserts that this data is foreign intelligence information.

DOJ Letters. In addition, Peter Keisler of the DOJ wrote a letter to Farber informing her of the lawsuit, in which he stated that "it is our belief that compliance with the subpoenas would place the carriers in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without harming national security, and that enforcing compliance with these subpoenas would be inconsistent with, and preempted by, federal law."

He added that "The subpoenas infringe upon federal operations, are contrary to federal law, and accordingly are invalid under the Supremacy Clause ..."

Keisler also wrote a second letter to the subpoenaed carriers. One of the addressees is Bradford Berenson of the law firm of Sidley & Austin, who represents AT&T in this matter.

Peter Keisler. The DOJ complaint lists the names of several DOJ attorneys. Peter Keisler is the first listed name. Keisler also wrote the DOJ's letter to New Jersey AG Farber. Keisler also wrote the DOJ's letter to the attorneys for AT&T and the other carriers.

Keisler is the Assistant Attorney General in charge of the DOJ's Civil Division. He was until recently a partner in the law firm of Sidley & Austin, where he represented AT&T.

AT&T is one of the carriers subpoenaed by the New Jersey. AT&T is also a party to a pending merger application at the Federal Communications Commission (FCC) in which the legality of AT&T's participation in the NSA program is at issue.

For example, on June 5, 2006, the ACLU sent a letter [PDF] to the FCC arguing that it can not approve the merger of AT&T and BellSouth until it first determines whether either of the two companies violated 47 U.S.C. 222 in connection with the activities addressed in the May 11 USA Today article.

AT&T also faces potential civil liability in connection with its participation in the NSA program.

The action just taken by the DOJ also serves the interests of AT&T.

A spokesman for the DOJ told TLJ that he (spokesman) would not answer any question about this case.