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U.S. trying to halt suit against NSA

blog The Bush administration plans to assert "state secrets privilege" to get the case alleging illegal spying dismissed.

It's official: The Bush administration formally said Friday that it will try to halt a lawsuit that accuses AT&T of helping the National Security Agency spy on Americans illegally.

In an 8-page document (PDF) filed with a federal court in the northern district of California, the U.S. Justice Department said it will intervene in the lawsuit and try to have it tossed out of court.

The Electronic Frontier Foundation, a digital rights group based in San Francisco, filed the class action lawsuit against the federal government in January. The suit claims AT&T's alleged cooperation violates free speech and privacy rights found in the U.S. Constitution and also contravenes federal wiretapping law, which prohibits electronic surveillance "except as authorized by statute."

A Los Angeles Times article dated Dec. 26 quoted an unnamed source as saying the NSA has a "direct hookup" into an AT&T database that stores information about all domestic phone calls, including how long they lasted. In addition, EFF that it has unearthed possibly-confidential documents describing a "dragnet" scheme in use by AT&T. (AT&T, which has repeatedly declined to comment, has asked that the documents be returned.)

The Justice Department said in its filing that the "United States intends to assert the military and state secrets privilege" and have the case dismissed.

The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets.

In 1998, the 9th Circuit Court of Appeals elaborated on the state secret privilege in a case where former workers at the Air Force's classified Groom Lake, Nev., facility alleged hazardous waste violations. When requested by the workers' lawyers to turn over information, the Air Force refused.

The 9th Circuit upheld a summary judgment on behalf of the Air Force, saying that once the state secrets "privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute" and the case will generally be dismissed.

That "absolute privilege" case is still good law and is binding on U.S. District Judge Vaughn Walker, who will hear EFF's case.

The Bush administration did carefully note, however, that a mere invocation of the state secret privilege should not be viewed as confirmation that AT&T did anything untoward, saying even the non-existence of the activity is a state secret. "The fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of plaintiffs' allegations, either about AT&T or the alleged surveillance activities," the brief said.

Also this week, a Republican senator threatened to pull funding on the surveillance program unless the Bush administration divulges more details to Congress.