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DOJ wants NSA wiretapping suits dismissed on state secrets basis

[JURIST] The US Department of Justice late Friday filed for dismissal [redacted brief in support of motion, PDF] of two lawsuits [JURIST report] brought over the National Security Agency's domestic wiretapping program [JURIST news archive], saying that defending them would require disclosure of state secrets and would be contrary to national security interests. The first suit [CCR press release; complaint, PDF], brought in New York by the Center for Constitutional Rights [official website] in January on its own behalf and on behalf of CCR attorneys and legal staff representing clients who fit the government's criteria for targeting, asks the federal courts to block the program as an abuse of presidential power without judicial approval or statutory authorization in breach of the Foreign Intelligence Surveillance Act, Article II of the US Constitution, and the First and Fourth Amendments. The second suit [ACLU press release; complaint, PDF] brought in Michigan by the American Civil Liberties Union on behalf of journalists, scholars, attorneys and national nonprofit organizations similarly having "a well-founded belief that their communications are being intercepted by the NSA" also charges that the NSA program violates the First and Fourth Amendments.

Shayana Khadidl, a staff attorney on the CCR litigation, responded [CCR statement] to the dismissal motion by saying:

The Bush Administration is trying to crush a very strong case against domestic spying without any evidence or argument. This is a mysterious and undemocratic request, since the administration says the reason the court is being asked to drop the case is a secret. I think it's a clear choice: can the President tell the courts which cases they can rule on? If so, the courts will never be able to hold the President accountable for breaking the law.
The government motion was made in immediate response to CCR's own motion for summary judgment [PDF] in the case, filed March 9. CCR's own response to the government motion has not been filed, but is expected to emphasize that its evidence on the illegality of the spying program is based on public evidence, not secret documents, and that even if the government is correct in saying that a public trial could disclose state secrets, alternatives exist in the form of closed proceedings or requiring filings to be made under seal.

Earlier this month, the DOJ successfully persuaded [JURIST report] a federal judge in the al-Masri CIA rendition case to dismiss an ACLU suit on similar state secrets grounds [JURIST report]. The US Supreme Court established the state secrets privilege in the 1953 case of United States v. Reynolds [opinion text]. The government invoked the privilege [News Media & The Law commentary] in only four cases between 1953 and 1976, but it was invoked by the Bush administration 23 times in the four years after the Sept. 11 terrorist attacks and has been invoked at least five times in the past year.

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