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NSA wiretapping case to proceed despite DOJ 'state secrets' dismissal bid

[JURIST] A federal judge in Michigan has ordered the National Security Agency to respond to a lawsuit [case materials] filed by the American Civil Liberties Union challenging the legality of the NSA's domestic surveillance program [JURIST news archive]. US District Court Judge Anna Diggs Taylor denied [order, PDF] the NSA's motion to stay consideration of the ACLU's motion for partial summary judgment [PDF text], saying that the government's attempt to dismiss the case on the basis of state secrecy will not be heard until after an earlier ACLU motion for summary judgment. The hearing on the ACLU's motion is scheduled for June 12.

The ACLU lawsuit, filed 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" alleges that the NSA program violates the First and Fourth Amendments. The DOJ filed for the dismissal [JURIST report] of the lawsuit last Friday, invoking the state secrets privilege first recognized by the US Supreme Court in US v. Reynolds [opinion text]. The Bush administration has revived the use of the doctrine, using it at least 28 times since the Sept. 11 terrorist attacks. It had been relied upon only four times between 1953 and 1976 [News Media & The Law commentary]. The DOJ successfully invoked the doctrine [JURIST report] in the civil extraordinary rendition [JURIST news archive] lawsuit [case materials] filed by Khalid el-Masri, where he sought damages against the CIA and ex-director George Tenet for allegedly kidnapping him and detaining him without charges. The Detroit News has local coverage.

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