The Electronic Frontier Foundation, which has filed suit against AT&T over the company’s possible complicity with NSA spy programs, suffered a setback last month when the government invoked the “state secrets privilege” in an attempt to have the entire case quashed. The hearing over “state secrets” will take place on Friday morning, and the government has recently filed its final documents in the case. The claims made there are quite extraordinary; the executive branch basically claims that it is above judicial scrutiny.
“The court?even if it were to find unlawfulness upon in camera, ex parte review?could not then proceed to adjudicate the very question of awarding damages because to do so would confirm Plaintiffs’ allegations.”
The EFF interprets the government statement this way:
Essentially the Government is saying that, even if the Judiciary found the wholesale surveillance program was illegal after reviewing secret evidence in chambers, the Court nevertheless would be powerless to proceed, because the Executive has asserted that the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it. In short, the Government asserts that AT&T and the Executive can break the laws crafted by Congress, and there is nothing the Judiciary can do about it.
The “state secrets privilege” is a privilege actually created by the courts 50 years ago. Its purpose is to shield the government from revealing information in court which could damage the country’s security. Because it is such a potent tool, the Federation of American Scientists dubs it “the nuclear bomb of legal tactics,” and when the government uses it, it almost always wins. Case dismissed.
It’s a privilege that the Bush administration has already invoked several times, most recently against a lawsuit from the Center for Constitutional Rights. The CCR contends that the “state secrets” claim is ridiculous, since it assembled its case based on public documents and statements from people like Bush, not on classified materials.
As the debate rages on in the courtroom, the news media continue to report on the size and scope of the program. The newest allegation comes from Salon, and alleges that the government built a secret room in an AT&T network control facility near St. Louis.
In interviews with Salon, the former AT&T workers said that only government officials or AT&T employees with top-secret security clearance are admitted to the room, located inside AT&T’s facility in Bridgeton. The room’s tight security includes a biometric “mantrap” or highly sophisticated double door, secured with retinal and fingerprint scanners. The former workers say company supervisors told them that employees working inside the room were “monitoring network traffic” and that the room was being used by “a government agency.”
The claim is similar to the one made in the EFF case, where a secret room was allegedly built at an AT&T facility in California. Though the existence of a secretive NSA spy program with direct links into the domestic US voice and data grids has now been well documented, it has so far proved impossible to turn up any hard evidence about what the spooks are doing with all their data, or even what data is being collected. All private attempts at learning if US citizens are being illegally spied upon have been stonewalled by the government, and the same fate looks likely to befall the EFF tomorrow in court. Stay tuned.
The judge deciding the case has issued a set of questions for both parties to consider. They’re worth looking over, if only because they show that the judge is taking both sides of this debate seriously, and he doesn’t sound likely to simply roll over and accept the government’s claims without scrutiny.
How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T?s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?
The debate promises to be an interesting one.