Judge scuttles Verizon hearing PUC motion ‘risk’ to national security

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BANGOR – A federal judge concluded Thursday that the “potential risk” to national security is significant enough to grant a Justice Department motion to keep the Maine Public Utilities Commission from forcing Verizon to reveal whether it has cooperated with the National Security Agency’s warrantless wiretap program.

The PUC had ordered Verizon to appear before it today to explain why the communications giant has ignored the commissioners’ previous order to affirm under oath statements issued last year in the form of press releases.

U.S. District Judge John Woodcock’s strongly worded 24-page ruling was issued after a 90-minute hearing Thursday morning.

In it, he enjoined the PUC from holding the hearing and Verizon from responding to any subpoenas the commission has or might issue.

“It is painfully obvious that, in making assessments about the impact of its order on national security, the PUC is acting beyond its depth,” Woodcock wrote.

“The PUC’s statutory area of responsibility and expertise is to regulate public utilities, it is not charged with evaluating threats to national security, investigating the NSA, or holding businesses in contempt when their silence was mandated by the federal government.

“When confronted with a divergence of opinion as to the national security implications of the PUC order, as between the NSA, which is charged with ensuring national security, and the PUC, which is charged with state utility regulation, the court would be hard-pressed to rely on the assurances of the PUC over the warnings of the NSA,” he said.

The showdown between federal and state governments began in May when a multicustomer complaint was filed with the PUC.

It seeks to force Verizon to say whether it provided telephone call records to the government without warrants. The complaint came after news reports about domestic surveillance by the NSA.

Verizon moved that same month to dismiss the complaint. As background information, it attached two press releases it had issued, according to court documents.

The press releases stated the company could not comment on whether it had any relationship to the NSA program, but also said it had not shared records with the agency. Last summer, the PUC asked Verizon to submit sworn affirmations about the truth of the statements in the press releases.

The Justice Department in August sued the PUC and Verizon. It sought an injunction and declaratory judgment to keep commissioners from asking questions about what phone records the company has turned over to NSA, if any, and to keep Verizon from answering questions from the PUC.

Similar lawsuits were filed in federal courts in Missouri, Connecticut and New Jersey where agencies that regulate phone companies were seeking similar information. The lawsuits are being combined and sent to U.S. District Court in San Francisco under the federal court’s multidistrict litigation program.

Attorneys for the PUC have moved that its case stay in Maine. A hearing was held last month on the motion but a decision has not been issued.

Woodcock cited the pending litigation as another reason for his ruling. The case was moved to the Northern California District Court because it has a procedure for reviewing classified information the government has said would be a part of the case, the judge said.

“In contrast,” Woodcock wrote, “there is nothing to suggest that the Maine PUC has ever created or utilized a procedure for reviewing classified information and nothing to suggest that the contempt proceeding would provide the appropriate judicial oversight required for such highly sensitive matters.”

Carl J. Nichols, a Justice Department attorney who successfully argued the case Thursday, had no comment after the hearing.

“We respect Judge Woodcock’s decision,” said Assistant Attorney General Christopher Taub, who represented the PUC. “Obviously, we’re disappointed. Over the next few days, we’ll be considering our options, one of which would be to appeal to the 1st Circuit Court of Appeals in Boston.”

The executive director of the Maine Civil Liberties Union, which represented the Verizon customers who brought the complaint to the PUC, disagreed with Woodcock’s ruling.

“We don’t think it’s a national secret that the federal government and many phone companies conspired to conduct surveillance of phone customers in the U.S. and very possibly Maine,” Shenna Bellows said. “It’s hard to believe that confirmation under oath about statements made widely in the press would violate state secrets.”

Before hearing arguments Thursday, Woodcock strongly urged the PUC to put off today’s hearing until the lawsuit had either been resolved or the issue over where the Maine case will be heard has been decided.

The PUC would not delay the contempt hearing, Taub said, and the hearing on the government’s motion began.

As he has in previous motion hearings, Woodcock aggressively questioned attorneys for both sides forcing them to defend their positions and plug any legal holes the judge found in their arguments.

Attorneys for both sides continued sparring after Woodcock had adjourned the hearing and left the courtroom.

“This is ridiculous. You never asked us to sit down,” Nichols said, referring to Taub’s statement that the PUC had sought to meet with government attorneys before the contempt hearing.

“This is all your doing,” Taub shot back, apparently referring to the fact that the Justice Department had filed the lawsuit against the PUC.

The people who initiated the action appeared to be forgotten in Thursday’s hearing, said James Cowie of Portland as he left the Margaret Chase Smith Federal Building in Bangor. Cowie is one of 22 people who in April filed the complaint with the PUC in an effort to determine if they had been targets of the NSA’s warrantless wiretap program.

“The complainants have been waiting nine months for justice,” Cowie said. “We’re still waiting for a determination to be made about whether our phone records have been given to the government without warrants. Neither the judge nor the government said anything about us.”

In procedural move, Woodcock replaced the name of former PUC member Dennis L. Keschl with the name of Vendean Vafiades, who was confirmed last month by the Maine Senate.

Vafiades, a former District Court judge, is the daughter of the late Lew Vafiades, a well-known and revered Bangor attorney.

“I will note that I am familiar with the word ‘Vafiades,'” Woodcock said. “I wanted to hear that much beloved name echo in this courtroom.”