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DOJ: Oregon NSA surveillance suit could reveal state secrets

[JURIST] If allowed to proceed, a lawsuit filed by an Oregon nonprofit organization challenging the NSA domestic surveillance program [JURIST news archive] would impermissibly reveal state secrets, lawyers for the US Department of Justice (DOJ) argued at a Wednesday hearing in federal court. The DOJ filed a notice [UPI report] Monday with the Judicial Panel on Multidistrict Litigation (JPML) [official website] seeking to consolidate the case with almost two dozen other lawsuits against Verizon corporation and the government [JURIST report] challenging the NSA program. If the motion to consolidate is granted by the JPML, the DOJ is expected to rely on the state secrets doctrine to support a motion to dismiss the consolidated lawsuit.

The Oregon lawsuit, filed by the defunct Al-Haramain Islamic Foundation [Wikipedia backgrounder], claims that the NSA had illegally wiretapping several conversations between the charity and its attorneys. The complaint alleges that the NSA failed to get a court order authorizing electronic surveillance, thereby failing to follow procedures required by the Foreign Intelligence Surveillance Act (FISA) [official materials], and seeks relief in the form of "an order that would require defendants and their agents to halt an illegal and unconstitutional program of electronic surveillance of United States citizens and entities." Lawyers for Al-Haramain submitted a sealed document to the court which they say proves illegal eavesdropping, but DOJ attorneys have argued that the classified document was mistakenly turned over during discovery and should be returned.

The state secrets doctrine has been revived from relative obscurity by the Bush administration in recent years. The US Supreme Court established the state secrets privilege in the 1953 case 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 has been invoked more than 20 times since the Sept. 11 terrorist attacks and at least five times in the past year. The Oregonian has local coverage.

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