White House Tries to Prevent Judge From Ruling on Surveillance Efforts

The New York Times ^ | 21 Dec 2013 | CHARLIE SAVAGE and DAVID E. SANGER

[Theoria]

The Obama administration moved late Friday to prevent a judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.

In a set of filings in the two long-running cases in the Northern District of California, the government acknowledged facts that it had long held out to be secrets that would put the country at risk if they were to come out in court, including that the N.S.A. started systematically collecting data about Americans’ emails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants.

But the government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency.

“Disclosure of this still-classified information regarding the scope and operational details of N.S.A. intelligence activities implicated by plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States,” wrote the director of national intelligence, James R. Clapper Jr.

As a result, he said, he was continuing to assert the State Secrets Privilege, which allows the government to block information from being used in court even if that means the case must be dismissed.

[RetiredTexasVet]

“The least untruthful thing I could say ....”, you mean that James Clapper?

[Rodamala]

John has a long mustache.

[spokeshave]

Pack my bags with twelve dozen Phoenician liquor jugs.

[abclily]

Then Obama could avoid any litigation based on ‘state secret’?

Isn’t this what he did with Fast and Furious?

[Cboldt]

-- Then Obama could avoid any litigation based on `state secret'?
Isn't this what he did with Fast and Furious? --

Technically, he has to litigate the assertion of state secret, but yeah, if the government wins on that argument, then the plaintiff is out (and so are all similarly situated plaintiffs). Bush's DOJ did that when the government was sued under FISA. Plaintiff had actual evidence of being under surveillance without a warrant, the court ordered the plaintiff to not revel the evidence, and the evidence did not help plaintiff in the case - case was dismissed on state secret grounds. Turns out tthat the part of the law that fines the government for a surveillance violation is completely toothless.

I didn't follow the legal wranglings under Fast and Furious, but use of state secret would be a "natural" there because the government's actions were ostensibly international / foreign affairs.