Since 1953, the federal government has asked courts 60 times to drop cases because of threats to national security. In 55 of those cases, the courts agreed. So when the government invoked the so-called “state secrets privilege” in the lawsuit against AT&T over the company’s cooperation with the NSA’s domestic spying efforts, most people figured this would be the 56th case kicked to the curb.
But, in a surprise decision, “a federal judge in San Francisco has rejected the Bush administration’s bid,” Wired News reports.
That means the suit will be the first against the NSA over its eavesdropping-on-Americans that’ll actually get decided on its merits. Which is an extremely big deal, Patrick Radden Keefe tells Defense Tech. “There’s a pretty good consensus among legal scholars that the whole reason the administration wanted to kill this on procedural grounds is that if it ever got before a judge on the merits, the judge would have to rule that the op was illegal.“
Stay tuned.
UPDATE 07/22/06 12:26 PM: Go read Patrick’s analysis of the ruling in Slate. Now.
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Judge Disses “State Secrets”; NSA Suit to ProceedLeave a Reply |
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The case doesn’t necessarily get decided “on the merits”, there is something called an appeal, you know. I would hope that when you have 55 courts going one way and 5 going the other, the government attorneys would appeal this, and the 9th Cir. would hear them out, though anyone who knows the 9th Cir. knows that is the luck of the draw.
Judges write 72 page decisions when they know they are wrong. That has been my experience. When the law is on your side, you don’t need to be verbose. You write 72 pages when you feel you need to convince somebody or something, and/or when you don’t have a compelling argument so you instead take on the shotgun approach.
Given what I know of courts, especially when you’re talking 72 pages, it means the law clerks wrote this, which probably means the reasoning is all the more shoddy.
And, by the way, a district court judge can’t tell the country what the President’s Constitutional authority is, only the US Supreme Court does that, and for good reason. This is just one step in a much larger process.
Also, as a fyi for the non-lawyers out there. This was a motion to dismiss. The very first step to kill a lawsuit. It is generally difficult to get cases thrown out at that stage unless they are truly devoid of merit. The court quote in the underlying article:
“And as in Halkin v Helms, it is certainly possible that AT&T might be entitled to summary judgment at some point if the court finds that the state secrets privilege blocks certain items of evidence that are essential to plaintiffs’ prima facie case or AT&T’s defense.“
…means that this is not something at all guaranteed to go to the “merits”. It still has to survive summary judgment. Actually, though, it should not have been allowed to get that far, because now the real fights are going to be over discovery.
The EFF will play the “lets do our best to trash US security in the name of privacy” game, and the US government will oppose them, and we might have this same court then trying to compel the government to hand over classified information to the EFF, yeah right.
There will be many more chances to appeal, and anyone who thinks that a court has no choice but to rule the NSA program illegal is delusional. These people spouting off dont even really know about the program because it is still classified, and it will remain that way. All you see now is speculation from liberals, and hearsay coming from leakers with dubious motives and credibility.
The central holding of the case is that you can’t claim state secrets privilege if people in a position to know, including the President and the Attorney General, have already blabbered about its existence all over the place.
It also holds that different standards apply when the person bringing the suit is voluntarily part of the group keeping the secret, than when a member of the general public who didn’t agree to anything is involved.
The administration has put itself up against the wall by admitting publicly to a program that doesn’t have a solid legal justification, and indeed, that defies existsing statutes. While the trial court doesn’t mention Hamdan, that case looms over this one and it is no coincidence that this decision follows Hamdan. Hamdan stands for the principle that the President isn’t allowed to break the law, even though he may get some slack when it is silent, even when national security is at stake. The existence of FISA, and a whole bunch of other laws relating to wiretapping, takes this case out of the realm of cases where Congress has been silent.
If the President had wanted to avoid this situation, he should have kept his mouth shut, instead of flaunting his defiance of Congressionally passed statutes.
Well ohwilleke, I see from your blog that you are an extremely partisan liberal, which explains why your reasoning is so shoddy.
Fact is you really are convinced the program is illegal even though you don’t know anything about the details of the program.
Of course, no one can reason you out of a position that you clearly weren’t reasoned into in the first place. I have confidence that common sense and reason will rule the day in eventually defeating this lawsuit, so long as it is kept away from judges who share your irrational biases. This is yet another reason why conservatives need to be, and have been, fighting to get conservative judges and justices confirmed.
“Why do Americans always react this extreme to anything?“
How do you know these folks are from the States?
Hi Kaltes: given what you know of courts…doesn’t mean it was necessarily written by law clerks. And, anyway,how do you know it’s not a hoax doc?
Are you a judge perchance?
If you’re not — despite the *implication* you’re a lawyer — then how do you know for a fact that judges only write lengthy docs when they’re wrong?
There must be instances where length’s required and which has no bearing on the quality.
Anyway, my advice to Americans is to go shopping for a wig — not a collective one obviously — and electric blue binoculars and spy right back.
Have a nice day!
ps OK I believe you you’re a lawyer
There’s a comment at Jurist, the link under my name: Kw = [ 274 F. Supp. 2d 20 ].
Short version: It’s not Constitutional for the Congress to pass legislation that will target this ongoing litigation, yet the Court appears to have opened the door to that possibility.
Details: [ http://tinyurl.com/ho4qe ]
This is good news. I want AT&T to pay ALL of it’s customers retribution in the form of free long distance and caller ID for life and a 25% phone bill decrease for the next 5 years.
Sorry, Congress cannot change the law in pending cases at will. There is an elaborate web of rulings involving the contracts clause, prohibition on ex post facto laws, and limitation on bills of attainder that, more often than not forbids it. There are exceptions to these rules, but they are exceptions.