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Following Bush lead, Obama moves to block challenge to wiretapping program
John Byrne
Published: Monday April 6, 2009


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Wants case against NSA dismissed

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 Friday brief involves a lawsuit filed by the civil liberties group Electronic Frontier Foundation, which is suing the NSA for the wiretapping program. The agency monitored the telephone calls and emails of thousands of people within the United States without a court's approval in an effort to thwart terrorist attacks.

In attempting to block a San Fransisco court from reviewing documents relating to the NSA program, the Obama Administration is also protecting other individuals named as defendants in the suit: Vice President Dick Cheney, former Cheney chief of staff David Addington and former Bush Attorney General Alberto Gonzales. The Friday brief responded to the government agencies being sued; the individual defendants have asked for more time to prepare their response.

It also stands firmly behind the telecommunications giant AT&T. AT&T whistleblower Mark Klein revealed that the company allowed the agency to install network monitoring hardware to spy on American citizens.

The Director of National Intelligence, the Justice Department says, "has set forth a more than reasonable basis to conclude that harm to national security would result from the disclosure of whether the NSA has worked with any telecommunications carrier." AT&T is specifically mentioned. Public reports have fingered AT&T, Verizon, MCI and Sprint as participating in the government's eavesdropping efforts.

Acting Assistant Attorney General Michael Hertz penned the brief on behalf of the Obama Justice Department.

"The grounds for this motion [to dismiss] are that the Court lacks subject matter jurisdiction with respect to plaintiffs' statutory claims against the United States because Congress has not waived sovereign immunity, and summary judgment for the Government on all of plaintiffs' remaining claims against all parties... is required because information necessary to litigate plantiffs' claims is property subject to and excluded from use in this case by the state secrets privilege and related statutory privileges," Hertz and other trial attorneys for the Justice Department wrote.

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.

The Electronic Frontier Foundation fired off a scathing press release Monday.

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston in the release. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

The Obama Administration's full motion to dismiss can be read here (PDF).

This article has been updated from its original version.


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