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Judge To Decide Whether NSA Spy Suit Continues

An online consumer activist group pushes for legal action against the U.S. government and telecoms that cooperated with it.

The Electronic Frontier Foundation will argue Friday that the lawsuits over the National Security Agency's spy program should proceed while the government asks a higher court to overturn a judge's decision to continue hearing the case.

At issue is whether the U.S. government was within the law to monitor domestic phone calls and other communication originating from parties outside the United States in an effort to quash terrorist activities. Attorney General Alberto Gonzales has since said the Bush administration will reverse its stance on domestic spying.

Rebecca Jeschke, an EFF spokesperson, said this week that EFF believes the cases should proceed because surveillance of innocent Americans could be continuing. The EFF filed its lawsuit against AT&T, which is one of dozens of similar lawsuits regarding the NSA's surveillance program. The suits could consolidate, but first U.S. District Court Judge Vaughn Walker must decide whether he will continue to hear EFF's case during the appeal.

The government has been guarded about the program and has tried to invoke privileges regarding state secrets to keep the cases from moving forward. At the same time, it has argued that the plaintiffs in the case cannot prove that they are "aggrieved parties."

EFF's lawyers argue that much of the material the government claims is secret has been aired in news reports and that the government's own filings contradict its claims. EFF also argues that phone companies have confirmed some of the claims against the government by stating that declarations from former employees constitute trade secrets. Finally, EFF is arguing that journalists can prove they are aggrieved parties since the government has acknowledged spying when investigators suspected at least one party to a conversation had terrorist ties.

The government has defended the program, stating that it was legal and necessary for preserving national security. Telecommunications companies accused of breaking the law by cooperating with the spy program also maintain that they have not broken any laws.

The hearing is likely to be long since plaintiffs and defendants in several cases are presenting unified arguments. So far, Walker has put his decisions in writing, days after the hearings, rather than making and announcing immediate decisions.

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