[JURIST] Lawyers representing the Bush administration argued for the dismissal of a class action lawsuit [EFF case backgrounder; JURIST report] challenging the legality of the National Security Agency's domestic surveillance program Wednesday, urging the US Court of Appeals for the Ninth Circuit to give the executive branch's assertion of the state secrets privilege the "utmost deference" because the US is engaged in the so-called "war on terror." The lawsuit, filed by the privacy rights group Electronic Frontier Foundation (EFF) [advocacy website], accuses AT&T of illegally allowing the NSA to monitor its clients' telephone and e-mail communications. Lawyers from the Department of Justice (DOJ) have insisted that even litigation would reveal information that would threaten national security, and have gone as far as to suggest that "whether plaintiffs were subjected to surveillance is a state secret and information tending to confirm or deny that fact is privileged." DOJ and AT&T lawyers have also insisted that the plaintiffs have no standing to sue as they are unable to demonstrate they have been injured by any alleged surveillance.

The DOJ, although not an immediate party to the litigation, is appealing [JURIST report] a lower court order [PDF text; JURIST report] rejecting the DOJ's motion to dismiss [redacted brief in support of the motion, PDF; JURIST report] on the state secrete privilege. Last July, US District Judge Vaughn Walker determined that the broad media coverage of the domestic surveillance program [JURIST news archive] had neutralized any danger of disclosing state secrets. Government lawyers have used the same state secret argument in another lawsuit [JURIST reports] filed by states hoping to obtain more information from the federal government about the surveillance programs. In July, the US Court of Appeals for the Sixth Circuit rejected [JURIST report] a lawsuit brought by the American Civil Liberties Union, ruling that the plaintiffs had no standing to file suit. AFP has more. The New York Times has additional coverage.