Remember playing tag as a kid, when you had that one spot that was "safe"? If you had your hand on a certain tree, then you could not be tagged 'it'. The Bush administration seems to be treating national security largely as the safe spot, arguing that as long as they claim something is necessary for national security, not only can you not stop them from doing it, you can't even find out if they're doing it. Yesterday, a Federal judge dismissed a lawsuit that sought to stop AT&T from handing over phone records to the NSA because they hadn't proven that the company did that. Never mind that the court also ruled that they couldn't make the company say whether they did it in the first place:
"The court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government's intelligence activities," U.S. District Judge Matthew F. Kennelly said.
It's hard to imagine any credible argument for such a conclusion. The program has already been widely reported. The judge says that merely amounted to "speculation", not confirmation of the program. Does he seriously think that terror groups seeking to avoid detection aren't operating on the assumption that the government has access to those phone records, especially after all the news reports on it? That hardly seems reasonable. More importantly, look at the catch-22 this puts any plaintiffs in:
Justice Department attorneys had argued it that would violate the law against divulging state secrets for AT&T to say whether it had provided telephone records to the supersecret spy agency.The ACLU argued that the practice was no longer secret, because numerous news reports had made it clear that phone records had been given to the agency.
But the judge said the news reports amounted to speculation and in no way constituted official confirmation that phone records had been turned over.
He also said Terkel and the other plaintiffs in the lawsuit, which sought class-action status, had not shown that their own records had been provided to the government. As a result, they lacked standing to sue the government, he said.
So we won't tell you whether we're doing it. And if we don't tell you we're doing it, you have no standing to find out if we're doing it or to challenge what's being done. A perfect mobius strip of logic that essentially guts the first amendment guarantee of the right to petition the government for redress of grievances. If anyone can find the text of this ruling, I would appreciate it.
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Can't we safely assume that the terrorists are aware that any kind of electronic transaction - phone, credit card, ATM withdrawl, etc. - can be, and probably is, traced. How stupid would they have to be not to realize this. O.K. ... some of them are that stupid, like that guy who went back to get his refund for the van used in the first WTC bombing. But surely most are not that dimwitted.
I'm a bit gobsmacked by this ruling. I understand that the courts normally defer to the government over state secrets, but this is ridiculous. As you say it quite explicitly allows the government to dismiss all challenges to the constitutionality of its behaviour by putting its fingers in its ears and shouting "National security!" I may have asked this before, by why couldn't the case be heard in camera?
Just a note - this isn't the lawsuit from the Electronic Frontier Foundation where the government tried to get it stopped by saying National Security and the judge said no. That one is still ongoing. Don't know exactly what this one was, but the points made about a bad decision seem valid.
Right. There are multiple suits going around the country. The EFF's lawsuit was allowed to go forward last week, the judge in that case rejecting the same argument that the judge in this case accepted. There is also a suit in Federal court in Detroit over the NSA wiretapping, and the judge's ruling on an identical motion by the government is pending as we speak.