Waterboarding, wiretapping, and a new judge for DOJ vs. NAR

Bush administration appointments have led to a change in the judge presiding over the two-year-old antitrust lawsuit filed by the federal government against the National Association of Realtors. (See Inman News.)

Mark R. Filip, a U.S. District Court Judge for the Northern District of Illinois who was assigned to the United States vs. National Association of Realtors litigation, is a nominee for U.S. deputy attorney general. And the chief judge for Filip's court district has ordered the reassignment of all of Filip's criminal and civil cases in which the federal government is a party while his nomination is pending.

Attorney General Michael Mukasey this month took over the post vacated in the August resignation of Alberto Gonzalez, and Mukasey tapped Filip to serve as deputy attorney general. The Associated Press reported that Filip "is a natural match for Mukasey," at least on paper, as both have been federal judges and are loyal Republicans.

Also, the AP reported that Senate Majority Whip Dick Durban, D-Ill., who has been a Mukasey critic, is a Filip fan.

U.S. District Court Judge Matthew F. Kennelly will handle the DOJ vs. NAR case in Filip's place. Kennelly was appointed as a federal judge in 1999 by then-President Bill Clinton.

So the August resignation of Attorney General Alberto Gonzales touches the DOJ vs. NAR case.

Gonzales had been under fire for the replacement of several U.S. attorneys.

Mukasey's nomination was not without controversy. Members of Congress grilled Mukasey about his stance on waterboarding, an interrogation technique that simulates drowning and  which opponents argue is a form of torture.

Kennelly, meanwhile, last year issued an opinion in a lawsuit that charged AT&T Corp. and affiliates with illegally providing information about customer telephone calls and Internet communications to the National Security Agency. He stated that the federal government has intervened in several similar cases "and has sought dismissal pursuant to the 'state secrets' privilege, contending that allowing the cases to be litigated would damage national security."

While some of the other related cases focused on wiretapping, or the intercepting of communications content, the case that Kennelly considered related to records that the communications company allegedly turned over to the NSA.

Kennelly dismissed the government from the case citing "no public disclosures of the existence or non-existence of AT&T's claimed record turnover ... that are sufficient to overcome the government's assertion of the state secrets privilege," and he found that those named in the lawsuit "cannot obtain the information they would need to prove their standing to sue for prospective relief and therefore cannot maintain that type of claim," according to the opinion. He did allow for the filing of an amended complaint.

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