[Posted by Karl]
President Barack Obama invoked “state secrets” to prevent a court from reviewing the legality of the National Security Agency’s warantless wiretapping program, moving late Friday to have a lawsuit that challenged the program dismissed.
The move — which holds that information surrounding the massive eavesdropping program should be kept from the public because of its sensitivity — follows an earlier decision in March to block handover of documents relating to the Bush Administration’s decision to spy on a charity. The arguments also mirror the Bush Administration’s efforts to dismiss an earlier suit against AT&T.
The Justice Department also holds that the lawsuit can’t proceed because of the Foreign Intelligence Surveillance Act. They assert that the US government has “sovereign immunity” against statutory claims that it illegally wiretapped or accessed communications data.
Congress expanded the wiretapping program in 2008 with passage of amendments to the Act, which gave telecom companies immunity for past and future participation in the program and expanded the legal use of warrantless wiretaps from 48 hours to seven days. The revised Act also allowed the government to destroy records of previous taps.
Obama voted for the revised Act while a senator last year.
In February Obama lawyers used the same “state secrets” tactic to block a lawsuit brought by the ACLU on behalf of five victims of extraordinary rendition — the CIA’s famed kidnap and torture program. “This case cannot be litigated,” Department of Justice lawyer Douglas Letter declared on February 9th, arguing that the case, Mohamed et al. v. Jeppesen Dataplan, should be thrown out. “The judges shouldn’t play with fire in this national security situation.”
ACLU director Anthony Romero decried the move. “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government.”
Now, warrantless spying can be added to the list.
“In our case we have no reason to believe that the warrantless wiretapping has ended,” said [EFF legal director Cindy] Cohn, “so at some point we have to call it Obama’s warrantless wiretapping.”
Why put off until tomorrow what you can do today?
Update: Glenn Greenwald is apoplectic:
[B]eyond even the outrageously broad “state secrets” privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and — even if what they’re doing is blatantly illegal and they know it’s illegal — you are barred from suing them unless they “willfully disclose” to the public what they have learned.
In contrast, Andrew Sullivan is silent. Funny, when Greenwald cut the administrations some slack today, Sully was all over it.