Friday, July 21, 2006

Judge Allows NSA Case to Move Forward; Bush Administration Continues to Ignore Hamdan

Glenn Greenwald details the Northern District of California's rejection of the Bush Administration's motion to dismiss on state secrets grounds the illegal NSA surveillance lawsuit brought against AT&T. Here's his lede:

The Bush adminstration suffered an enormous defeat today, as a federal district court denied its motion to dismiss the lawsuit brought by the Electronic Frontier Foundation against AT&T, which alleges that the administration's NSA warrantless eavesdropping program (and AT&T's cooperation with it) is illegal. Most significantly, the district court, which is in the Northern District of California, rejected the administration's claim that allowing the litigation to proceed would jeopardize the disclosure of "state secrets," a doctrine which the administration has repeatedly exploited to prevent judicial review of its conduct. Traditionally, courts almost always defer to the executive's invocation of that claim and accept the President's claim that national security requires dismissal of the case. But this time, the court rejected that claim.

In a subsequent post, Greenwald ties this important decision to the need to block Arlen Specter's unbelievably stupid and irresponsible attempt to allow unlimited warrantless surveillance outside of the FISA court's procedures, and to end this important judicial review.

Prof. Marty Lederman has a refresher course for Arlen Specter on the Supreme Court's landmark Youngstown decision on the limits of executive power.

In related news, Lederman explains how the Bush Administration is continuing to assert the legal theories repudiated by the Supreme Court in Hamdan as if Hamdan never happened:
As I noted here, DOJ is asserting the rather remarkable view that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program." A response to this proposition from a group of constitutional scholars and former government officials (of which I am part) is here.

On Monday, DOJ submitted answers to 109 Questions on the NSA/FISA issue that the Senate Judiciary Committee posed to the Attorney General following his testimony last February. It's about what you'd expect: DOJ refuses to answer virtually all factual inquiries about the NSA program; strongly suggests that there are other secret surveillance programs in addition to the "Terorrist Surveillance Program" that are not limited in the ways the TSP is said to be; and won't reveal any internal deliberations or memoranda -- except, of course, those that it chooses to disclose.

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