Ruling Awaited on Bush Era Wiretap Program

SAN FRANCISCO (CN) - A federal judge is considering the government's request to dismiss a class action accusing the National Security Agency of illegally spying on citizens' phone calls.

The class claims the George W. Bush administration colluded with major telecommunications companies on "a range of surveillance activities inside of the United States without statutory authorization or court approval, including electronic surveillance of Americans' telephone and Internet communications."

U.S. District Judge Vaughn Walker heard arguments last week on the government's motion to dismiss.

Anthony Coppolino, special litigation counsel for the government, contended that although the class must obtain evidence of the alleged eavesdropping to establish standing, they "risk exceptional harm to national security" by asking that the government turn over records of their communications.

"What they seek they believe is not privileged," said Coppolino, who maintained that the information the class seeks would risk disclosure of information protected by the state secrets privilege.

Walker pressed the plaintiffs' attorney Kevin Bankston to say why he believes the state secrets privilege does not apply to this case.

Bankston said it is pre-empted by the Foreign Intelligence Surveillance Act. FISA requires the government to reveal where and how communications are intercepted and requires disclosure of government intelligence sources and methods. He said the records must be handed over "for the purpose of discovering the legality of the surveillance." Bankston added that President Obama's administration has declared that it "does not intend to use the state secrets privilege to cover up illegal activity."

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