First it was the President George W. Bush administration and then the President Barack Obama administration, which for years have been arguing in court that the state-secrets privilege shields the government from lawsuits accusing it of siphoning Americans' electronic communications to the National Security Agency without warrants.
But with the recent Spygate leaks, including one that all calling metadata of Verizon customers is being forwarded to the NSA, the government is hard-pressed to maintain that line with a straight face.
"By contrast, the recent disclosures have greatly undermined the factual and legal basis for the government defendants' separate and distinct state secrets motion," the Electronic Frontier Foundation wrote in a recent court filing.
The EFF's lawsuit, which has had a tortured history through the courts, is based in part on allegations of internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which allegedly route internet traffic to the NSA.
A decision from U.S. District Jeffrey White in San Francisco is pending on whether to dismiss the long-running case, based on the government's state secrets assertion. The state secrets doctrine was first recognized by the Supreme Court in the McCarthy era, and is asserted when the government claims litigation threatens to expose national security secrets. Judges routinely dismiss cases on that assertion alone.
But because of the leak appearing in the Guardian two weeks ago, the Obama administration wants the court to delay, perhaps indefinitely, a decision on the EFF lawsuit.
"In light of these developments, the Government Defendants request that the Court defer further consideration of the pending motions and grant the Government time to consider the effect on the pending motions of the Government's decision to declassify certain information, and to consult with plaintiffs concerning the matter," the government wrote in a recent filing. (.pdf)
The EFF countered: (.pdf)
"The government defendants' request for an open-ended stay lacks merit. It is only the latest step in the government's so-far entirely successful effort over the past seven years to evade any adjudication of the legality of the electronic surveillance it has been engaging in since October 2001."
The Guardian newspaper was leaked a secret court order requiring Verizon Business Solutions to provide the NSA with the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.
The Guardian and Washington Post were leaked material detailing a program called PRISM, which described a system whereby nine internet companies, including Google, Yahoo and Facebook had special equipment installed in their facilities that allowed NSA analysts sitting at their desks to query the data directly. The internet companies said they did not provide the government direct access to their servers.
Meanwhile, following the leaks, at least two new lawsuits with similar spying allegations have surfaced. The government has not publicly responded to those yet.
