A few weeks back, Judge Vaughan Walker ruled that the EFF suit against AT&T for allegedly turning over phone records to the NSA — an arguably illegal act — could continue. The Feds had argued that AT&T couldn’t say anything in the case because that would confirm (or deny) that the NSA had gotten such records, and to do so would be a Bad Thing as far as national security goes. Walker’s
response was, “Hey, guys, everyone knows they did it, or suspects it, so it’s hardly a secret to the Black Hats out there, right? Especially since you guys have already practically admitted it.”
So now they’ve appealed to the 9th Circuit.
In a 24-page brief filed on Monday, the Justice Department asked the 9th Circuit Court of Appeals to review the case because of the “serious risk” of disclosing sensitive information. “The district court has, in a highly unusual action, overruled the government’s assertion of the state secrets privilege, and has thereby placed at risk particularly sensitive national security interests,” the brief states.
Because heaven forbid that someone should actually question the government when it says, “Sorry, you can’t see this, move along.”
The Bush administration has tried to derail the EFF’s lawsuit by invoking the “state secrets” privilege and has submitted statements from Keith Alexander, the NSA’s director, and John Negroponte, the director of national intelligence. The state secrets privilege generally permits the executive branch to dismiss lawsuits that could endanger the nation if allowed to proceed.
Those arguments worked before a federal judge in Chicago. On July 25, U.S. District Court Judge Matthew Kennelly granted the Justice Department’s request to throw out another suit related to the NSA program brought by the American Civil Liberties Union.
But Walker, the judge in San Francisco, saw things differently in the EFF suit and ruled that “even the state secrets privilege has its limits.” Although the state secrets privilege might require that the case be halted at some point, he said, it should not be tossed out of courts before it could even properly begin.
Let’s hope the 9th Circuit feels likewise.
(via BoingBoing)
Is there some reason the jurors, judge, etc., that is, the people who will actually see the documents, can’t be screened for the ability to obtain secret clearances, and cameras kept out of court? Sheesh. It’s not like my interim clearance was that hard to obtain.
There are Some Secrets Too Secret to Tell evidently.
There are, in fact, plenty of procedures for handling classified information in judicial proceedings. If this was a Manhattan Project sort of thing, yeah, that might be risky. But given the circumstances, there are plenty of ways that the classified elements of the case can be handled in secrecy.
The only reason this stuff has been made “State Secrets” is because it is criminal activity.
If only Nixon had thought of this cleaver ruse.