[NYTr] Bush Regime: Warrantless Snooping "Cannot Be Questioned"

[All the News That Doesn't Fit]

Wired Blogs - Aug 13, 2007
http://blog.wired.com/27bstroke6/2007/08/bush-administ-1.html

Bush Administration Says 
Warrantless Eavesdropping Cannot Be Questioned

By David Kravets

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The officials spoke on the condition that their names would not
be published because, they said, it was the government's protocol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.