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Bush Administration Says Warrantless Eavesdropping Cannot Be Questioned

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By David Kravets
August 13, 2007

The Bush administration said Monday the constitutionality
of its warrantless electronic eavesdropping program cannot be challenged.

The government is taking that position in seeking the dismissal of federal
court lawsuits against the government and AT&T over its alleged involvement
in the once-secret surveillance program adopted after the Sept. 11 terror attacks.
The strategy was first recognized by the U.S. Supreme Court in a McCarthy-era
lawsuit. It has been increasingly invoked in a bid to shield the government
from legal scrutiny.

Two senior Justice Department officials, speaking on condition of anonymity
in a teleconference with reporters, reiterated the administration’s position
that it was invoking the so-called “state secrets privilege” in arguing
that the 9th U.S. Circuit Court of Appeals must dismiss the cases because they
threaten to expose information authorities say is essential to the nation’s
security.

“The case cannot be litigated in light of the national security interest
involved,” one official said.

The officials spoke on the condition that their names would not be published
because, they said, it was the government’s protocol not to comment on pending
litigation.

The Bush administration has invoked the state secrets defense often, from spy
cases and patent disputes to employment discrimination litigation.

Still, two judges have ruled recently that the defense does not apply in two
lawsuits challenging Bush’s surveillance program. President Bush acknowledged
in 2005 that the government was eavesdropping without warrants on communications
in the United States as long as one of the parties to the communication was
suspected of terrorism and outside the United States.

On Wednesday, the government will urge the San Francisco-based appeals court
to dismiss the case on grounds that the case could expose state secrets, the
justice department officials said.

“In our view, those claims should always be dismissed,” a senior
administration official said. “A year from now, a director of national
intelligence, looking at all of the same information, may not make the same
determination.”

The official added: “These are legal principals not simply being made
up by the executive.”

The officials also said that the lawsuits should also be tossed because the
plaintiffs have no direct proof they were spied on.

“We cannot confirm or deny whether or not that’s true,” one of the
officials said.

Earlier this month, Congress sanctioned warrantless eavesdropping with new
legislation, which is also under attack on allegations such electronic surveillance
violates the Fourth Amendment’s warrant requirements. The new law requires that
at least one of the parties to the communication be outside of the United States
and associated with terrorism.

Source URL: http://blog.wired.com/27bstroke6/2007/08/bush-administ-1.html