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 still don't see how state secrets applies

[Raul654]

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)

just face it..

[essence]

...democracy is over. All the western countries are now becoming fascist. So what ya going to do about it? Write to your senator? pffft.

Re:The only thing putting national security at ris

[Anonymous Coward]

Rep. Waxman issued a Flash Report examining data released by the State Department and National Counterterrorism Center that shows that the number of reported global terrorism incidents has increased exponentially in the three years since the United States invaded Iraq--an increase of over 5,000% in the number of terrorist attacks and over 2,000% in the number of deaths in three years.
report [house.gov][pdf]

Re:But if ...

[Anonymous Coward]

Ultimately I guess you're right, but the way this goes one has to fight for the right to bring lawbreakers to justice first, and only then can you have the lawsuit over the actual case. Now the EFF will have to have the national security override thrown out before they can go after AT&T. This won't be easy because national security (not the privilege itself, but its goal) is also a constitutional right, and one which is currently in high regard.

Re:EFF Loss = New Precedents against our Civil Rig

[Bogtha]

In this case, the EFF has given the government an opportunity to use a new legal theory, that they are immune from lawsuits to prevent illegal violations of the Fourth Amendment (i.e. illegal search and seizure) merely by invoking Executive Privilege with a National Security Letter.

This is by no means a new legal theory. The State Secrets Privilege was first recognised by a judge in United States v. Reynolds, 1953 [findlaw.com], and he drew on existing English case law to make that judgement. The precedent was set over fifty years ago, it's hardly being set by the EFF.

Re:Possible Justification

[Anonymous Coward]

"Echelon anyone?"

Remember the Maine.
Pearl Harbor.
Operation Paper Clip.
Intentionally uncured syphallis experiments.
Unwitting LSD experiments.
Northwoods documents.
Various Church committee revelations.
Waco.
Ruby Ridge.
Abu Gharib.
Guantanamo Bay.

And these are only the ones that have been 100% confirmed by historical fact and admitted too.

Re:But if ...

[physicsphairy]

Irrelevant. No law supercedes the Constitution, which guarantees every citizen's right to privacy...

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

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

I think that contemporary case law has been mistaken for a constitutional protection. But that is where you and I have the same problem, namely, government entities going and hazing things up with a delusionally enlarged sense of their own power.

It's unfortunate that this notion of privacy was introduced as it was: a blatantly contrived re-reading of the constitution. Now those who jumped on board that judicial advancement for our rights are finding that it is being circumvented in the executive and the legislative and is quite often being approved with a wink from the judiciary. The right way to have done this would have been to have kept a constructionist philosophy to the consitution while ratifying an amendment to guarantee our right to privacy--then it would not be at so much of a risk of being swallowed up by the uncertain maneuvering room the government presently enjoys.

Giving the government the power to redact the constitution in exchange for wonderful things like the right to privacy is exactly the same thing as giving the government sweeping augmentations of power in exchange for safety. It doesn't matter how shiny or seemingly good/humanitarian/beneficial the reward is, if you cede them any control in exchange, you are going to be losing much more in the end.

Re:But if ...

[Bacon Bits]

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

"Rarely used" State Secrets privilege...

[swelke]

The "rarely used" state secrets privilege may indeed have been rarely used once, but since Bush's actions started to become unpopular it's sure been in the news a lot. I can't think of a case involving the NSA lately that DIDN'T invoke the privilege.

Re:Bullshit, how is does this even make sense?

[John Jamieson]

You are right, they can use the excuse for anything they want! There was a defense contractor using a patented invention for a waterproof connector for use in high pressures(if I remember correctly). He spent years perfecting it, and helping them, then when it was time to pay, they said TOO BAD, WE DON'T HAVE TO PAY. He sued, but they did not have to provide any proof they were or were not using it because the government stepped in and said that it might reveal state secrets.

He was screwed and basically got nada last I knew.

Oh ya, the company was Lucent(lucifer?) technologies and relates to underwater connectors for fiber optics(Wanna bet they have tapped into every undersea fiber there is?).

Re:I think...

[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.

Absence of evidence

[Beryllium Sphere(tm)]

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

We have Mark Klein's written statement about tapping fiber at ATT facilities.

> THERE IS NO EVIDENCE

We have Russell Tice's testimony before the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations

> THERE IS NO EVIDENCE

Attorney General Alberto Gonzalez has defended the program [pbs.org]

> THERE IS NO EVIDENCE

President Bush says he signed the order. [cnn.com]

> THERE IS NO EVIDENCE

Could you try using boldface? Somehow the all-caps hasn't been enough to convince me.

Than's for doing the work for us...

[moofdaddy]

A well regulated Militia, being necessary to the security of a free State
Uh, it's right there. being necessary to the security of a free state. The security of a free state is not only challenged from outside influences but by insider actions as well. If the framers we're only concerned with external states coming in and challenging our sovernty they would have said "being necessary to the security of a free state from foriegn nations" or something similiar. I