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Feds Go All Out to Continue Domestic Spying
(Ryan Singel, Wired News, May, 02 2006)
When the government told a court Friday that it wanted a class-action lawsuit regarding the National Security Agency's eavesdropping on Americans dismissed, its lawyers wielded one of the most powerful legal tools available to the executive branch -- the state secrets privilege. . . . That privilege allows the government to tell a judge that a civil case may expose information detrimental to national security, and to ask that testimony or documents be hidden or a lawsuit dismissed. . . . In this case, the government will be asking a federal judge in California to dismiss a lawsuit filed by the Electronic Frontier Foundation against AT&T for its alleged complicity in warrantless government surveillance of its customer's internet and telephone communications. The EFF alleges that AT&T gave the government access to a massive phone billing database and helped the NSA spy on its customers' internet use. . . . The state secrets privilege cannot be found in the U.S. Code, the code of federal regulations or the Constitution. Instead, it is a part of common law, the body of laws and precedents created over centuries of legal decisions. When the government believes that a civil suit might reveal secrets injurious to the country, the head of the appropriate government agency must review the matter and submit a signed affidavit attesting to the danger of the lawsuit or documents that might be disclosed. . . . Judges almost invariably agree to such requests . . . "There has never been an unsuccessful invocation of the state secrets privilege when national security is involved. The (EFF) suit is over." . . . Weaver points to a 1978 decision by a federal court to dismiss a lawsuit against the NSA by Vietnam War protesters as a precedent for what is likely to happen in the lawsuit against AT&T. . . . Judges almost always accept, at face value, assertions by the executive branch about the need for secrecy, said Stephen Aftergood, who directs the Federation of American Scientists' Project on Government Secrecy. . . . "It reflects a judicial lack of self-confidence in the face of national security claims made by the executive branch," Aftergood said. "You also see this deference in Freedom of Information Act cases." . . . "In a nutshell, invoking the privilege shuts down the judicial process and it says that the courthouse doors are closed," said Aftergood. "In a society ruled by law, that is a subversive action."

posted by LoZo 3:06 PM