DOJ To Claim National Security in NSA Case

deblau writes "Wired is reporting that the federal government intends to invoke the rarely used 'State Secrets Privilege' in the Electronic Frontier Foundation's class action lawsuit against AT&T. The case alleges that the telecom collaborated with the NSA's secret spying on American citizens. The State Secrets Privilege lets the executive branch step into a civil lawsuit and have it dismissed if the case might reveal information that puts national security at risk."

I think...

[Dance_Dance_Karnov (793804)]

that this action by the fed pretty much confirms the EFF's claims here.

Re:I think...

[Phoenix666 (184391)]

Agreed. Where there's smoke, there's fire. I hope people keep after government spying. It brought down one administration, and it can bring down another. Once it starts to unravel, we're going to find out more about the vast conspiracy that is the neo-con movement, from rigging the ballot to treason to war profiteering and on and on. It will shake the republic to its very roots. But once we excise them from the body politic and expunge their backers (the ultra-wealthy who are behind it all), we'll be a much stronger country. See, those people think they're born with the divine right of kings and think they can command the rest of us like sheep. What they fail and have ever failed to understand is that America's strength is in her people.

Re:I think...

[ThatDamnMurphyGuy (109869)]

> Did it ever ONCE cross your mind that the government could actually be spying on people who need to be spied on?

That's not the problem. The NSA was built to spy on people who need spying on. The problem is, they, and the administration, are not following the laws set forthe to do so such spying (getting warrants, even after the fact). THAT is the problem here. They are breaking the law because they feel like it, and they believe they do not have to be accountable for doing so,

Re:I think...

[by Anonymous Coward]

Well said. That is the point people are missing here. Nobody, especially the president, is above the law. If the law is there, they have to follow it, or ask congress to change the law (which they probably would have done).

They broke the law. There is no getting around that. You cannot spy on us citizens without a warrant. There is a system set up to get that warrant secretly, and "speedily". They chose to not get a warrant (or 10,000 warrants). It is that simple.

Using "national security" as a reason is not good enough. I think the supreme court already said this [cnn.com] Even if we had all of our communications monitored, that would not stop a terrorist who is determined to kill himself and take people with him. Giving up privacy will not help us stop the terrorists. Even if we imposed "martial law", as long as they have the determination, they would keep trying to kill themselves.

Look at Iraq now, we have how many hundreds of thousands of troops there, who have the authority to impose curfews, search without warrants, etc, and STILL there are many, many suicide bombings every month.

And, furthermore, since this is a war without a clear end, when will we know they are not monitoring our communications? Will they come out and say it, or will we just have to "take their word for it"? Sorry, that's not good enough. They have no credibility.

Re:I think...

[zCyl (14362)]

now all this case is about is absence of evidence as THERE IS NO EVIDENCE for what you're implying.

Do you really think the federal government has the political capital to spend right now going around and covering up wiretapping that they're NOT doing?

Re:I think...

[JWSmythe (446288)]

Correction:

    1) The trainer said they brought the elephant into your kitchen.

    2) There are elephant droppings leading up to your kitchen.

    3) The elephant has a huge interest in being in your kitchen.

    4) For national security reasons, we will not let you into your kitchen, nor tell you anything about what's happening in your kitchen.

    I'd be lead to believe there's a warm cup of coffee in your microwave. Oh no, it would indicate that there's an elephant in your kitchen.

Re:EFF Loss = New Precedents against our Civil Rig

[Tim C (15259)]

Well, seems to me that they have two choices.

Either they go ahead with the prosecution and risk creating this precedent that you fear. Or, they do not, and the government gets away with it.

Either way, with no consequences to their actions, the government is (or might as well be) above the law. At least with the EFF trying to prosecute, they

a) have a chance of doing something about it
b) bring it to people's attention
c) in the event of losing, sow the seed in people's minds that they *must* have been up to something in order to quash the case like that

Incidentally, you also mustn't forget that precedent is a guide, not an iron clad rule. Judges are free to rule differently; precedent just gives them something to use as guidance, and to point at in the event of their ruling being questioned.

Re:EFF Loss = New Precedents against our Civil Rig

[sakusha (441986)]

You obviously didn't read US v. Reynolds. The plaintiffs were seeking federal data to support their CIVIL lawsuit. The case established the Government's right to invoke Executive Privilege to stop disclosure in a tort.

The EFF case is entirely different. The government claims that Executive Privilege is a higher power than the 4th Amendment in the Bill of Rights. And the EFF, in the process of losing their lawsuit, will permanently erode the 4th Amendment, and place the Executive Branch beyond the reach of the courts.

Re:EFF Loss = New Precedents against our Civil Rig

[Bogtha (906264)]

Whether or not the executive branch believes it can ignore the Fourth Amendment is beside the point. The State Secrets Privilege is all about dismissing lawsuits before they even get to a point at which such a thing can be discovered.

This can be used to cover up abuses of power, but that doesn't mean precedents can be set making the abuses of power legal. That doesn't make sense. To set such a precedent would mean that the lawsuit wasn't dismissed but went ahead anyway.

The NSA defense

[wfberg (24378)]

"In our defense, your Honor, we did it in secret so as not to get caught."

"Case dismissed!"

I still don't see how state secrets applies

[Raul654 (453029)]

The 1978 Foreign Intelligence Surveillance Act (which established the FISA court) clearly and explicitely says that the US Government may not do survielance of American citizens without a warrant. I do not see how the government can assert privilege over the NSA's clearly illegal actions. (Nixon tried and failed - badly)

Re:I still don't see how state secrets applies

[praksys (246544)]

Under the US constitution power is divided between three branches of government. The central issue in this case is whether the power to conduct this kind of surveillence falls within the powers reserved to the executive branch. If that is the case then it doesn't matter what laws congress has passed, or what they appear to say. The only way to take this power away from the executive would be to ammend the constitution.

Nixon did of course get smacked down for doing something that looks similar, but in that case the spying was strictly domestic. In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country, and the court that decided the Nixon case specifically noted that their ruling did not apply to international communications.

Re:I still don't see how state secrets applies

[gstoddart (321705)]

In spite of what everyone keeps saying about the current case, it is not domestic spying. One end of every communication intercepted is in another country, and the court that decided the Nixon case specifically noted that their ruling did not apply to international communications.

Are you sure about that? The way I read the EFF case and the and the Wired writeup [wired.com], they are under the belief that ALL communications are being re-routed to the NSA. Not simply all calls which are going international.

If they are truly getting copies of every single AT&T communications, this would most especially NOT be limited to international communications -- it would, in fact, be large-scale domestic spying with no warrants or specific targets. Merely recording everything that goes on to see if they can sift out anything useful.

That is bloody scary! And, highly illegal.

Independent examiner

[Alain Williams (2972)]

So, will the US government allow this to be examined by someone completely independent who can then vouch that the government is clean ?

The examiner would, of course, be bound to secrecy other than answering the above question.

Need to get right: 1) who chooses the examiner (we don't want a gov't stooge); 2) who drafts the wording to the question to be answered.

OK: the above is a nice idea, but it won't happen - governments don't like their workings scrutinised.

Re:Independent examiner

[sachmet (10423)]

Who allied with Iraq to fight against the United States?

Words are one thing. Actions are another.

huh?

[by Anonymous Coward]

As a Muslim American, I'm told that I should invite violations of my basic civil rights with the only probable cause being my skin color, ethnicity and religion because I shouldn't have anything to hide. Yet, when the corporations involved with the government and the government itself has lawsuits filed against it based on evidence beyond the realm of "probable cause," they can invoke some act they pulled out of their asses. How do I go about obtaining an act like this but only to protect my civil/constitutional rights? Does the "if you got nothing to hide..." line work with the government too or is FOX news going to spin it some other way for all of us?

executive branch

[sentientbrendan (316150)]

I would like to see some serious punishment for some members of the administration after they leave office... People are talking about impeachment if the democrats get control of congress... but that seems like kind of a slap on the wrist, and would only effect bush himself.

It seems like more than anything else, what has characterized this administration is the desire for power. The wiretaps don't piss me off because I think they are unjust. They piss me off, because wiretaps without any kind of oversight seem likely to be used against the administrations political enemies. The administration has already openly abused its power to try to destroy its such enemies numerous times... they've been hunting down the people that leaked the warantless wiretapping stufff forever (didn't they find one guy?) and will probably try to bring some kind of trumped up charge against their obviously legitimate whistlebloying. Who is to say they weren't tapping democratic campaign headquarters in the 2004 election? I'm not sure that, with the character the administration has itself to have recently, that I can say that is beneath them.

At some point if the power of the executive branch isn't checked, the presidential office itself, could become a threat to the country. With the kind of power that the president has, how difficult would it be to just refuse to step down after your term was up? This president has shown no regard for the law, and a willingness to make up paper thin excuses for his abuse of power. Maybe Bush wouldn't, or couldn't take power like that, but if we set a precedent where we allow the president to break the law, and grab power like crazy all through his administration just like this one did, what's to stop someone more ambitious than him from going further in the future?

I'd like to see congress put some mechanisms in place for checking the execute branch. Specifically, I'd like whatever authority that the administration *imagines* gives them the power to do warantless wiretaps specifically removed. Power to spy on whomever it pleases the administration, without even having to tell anyone in the other branches about it, is clearly a threat to the checks and balance system. Maybe a constitutional amendment needs to be made laying out the powers of the executive branch more specifically, and limiting the power to spy on anyone without oversight from the judicial, and maybe the legislative branch.

Sounds like they're not denying it -- why??

[by Anonymous Coward]

So, either they don't have such a monitoring program, but they want the terrorists to think they do, and it would compromise state secrets to reveal the fact it does not really exist, OR ...

It's exactly what people are suggesting it is, and the government is going to cover its ass with a big "state secret" stamp?

What is this? The frickin USSR?

Here's a clue: if the system had been set up via legislation, so that there was debate about its merits and it had some kind of legal legitimacy, it wouldn't be a big deal to keep the details of its implementation secret. But secretly set up something that sure sounds as if it must be violating well-established law, and of course people are going to be pissed off and demand answers to questions. They are asking now for answers and justification that should have been provided before the thing was deployed.

At least the Great Firewall of China is openly admitted to exist, and everybody already knows the government there is authoritarian. Does a Great Firewall of the USA exist? The world may never know. But if its existence and justification is not properly explained to its own people it will say much more about the current US regime than the answers to the legal questions in this case ever would.

In what kind of bizarro democracy would the government truly be better off not explaining itself? Shouldn't they dispell people's concerns about these rumors?

Re:But we don't have anything to hide....

[babbling (952366)]

No, no! The INNOCENT have nothing to hide. The government does.

Re:legal system beond repair... Time for a reinsta

[mrchaotica (681592)]

"A little revolution now and then is a good thing; the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." -- Thomas Jefferson

It seems to me that the tree is looking a bit dry at the moment; perhaps we should water it now. That is why we have a 2nd Amendment, after all!

Re:But if ...

[Bacon Bits (926911)]

Irrelevant. No law supercedes the Constitution, which guarantees every citizen's right to privacy and the right to a due process warrant for search and seizure. It doesn't say "unless the President thinks it's a national security matter". The national security clause would have to be in the Constitution to be able to override this kind of suspension of Civil Rights.

Unless the Prisident is going to try to claim that he secretly declared martial law, there is no law in the land that will stop this from progressing. The best they can realistically hope for is a closed courtroom and sealed documents.

Principles of freedom

[Tony (765)]

Quite a few people believe it is our duty to support our President, even if he's a lying, cheating, murdering, egg-sucking, goose-fucking prick (and he is, too). Many even think that "freedom of speech" goes too far, and that the government should approve news stories (it seems it is these days). These same people have perverted the meaning of patriotism.

Patriotism is standing up for liberty. Patriotism is battling against tyranny, even if that tyranny is home-grown. Patriotism is putting the rights of the people before the rights of the government, and before the rights of corporations.

Re:But if ...

[Bacon Bits (926911)]

Hmm... cat constitution.txt | grep -i "privacy" It would appear that particular aspect of the document is missing.

Didn't take a college government class, eh? Just because the word ain't there don't me the law ain't real.

The US legal system is based on Rule of Law with precedence. That means previous court rulings on laws are considered the correct interpretation of laws, or, in this case, can effectively establish laws. Even constitutional ones.

From http://www.usconstitution.net/constnot.html#privac y [usconstitution.net] :

The right to privacy The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public's attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th's search and seizure limits, and the 5th's self-incrimination limit.

More:
http://www.law.cornell.edu/wex/index.php/Privacy

Re:But if ...

[Jon Luckey (7563)]

Hmm...
cat constitution.txt | grep -i "privacy"

It would appear that particular aspect of the document is missing.

Hmm...
echo cats cats cats lions tiger ocelots | grep -i "feline"

It would appear that any feline aspect of that string is missing

Re:No way!

[joe 155 (937621)]

Say it ain't so, Joe

It ain't so