By DAVID KRAVETS
SAN FRANCISCO – As lawmakers demand answers about warrantless electronic eavesdropping on Americans, the Bush administration says its secretive program’s constitutionality cannot be challenged.
The government is taking that position in seeking the dismissal of a lawsuit filed in federal court here against AT&T Inc. over its alleged involvement in the surveillance program adopted after the Sept. 11, 2001 terror attacks.
The federal government is invoking the “state secrets privilege” in arguing that the lawsuit must be thrown out because it threatens to divulge information that is deemed critical to national security.
“The state secrets privilege permits the government to protect against the unauthorized disclosure in litigation of information that may harm national security interests,” the Justice Department wrote to the judge presiding over the lawsuit filed by the San Francisco-based Internet privacy advocate Electronic Frontier Foundation.
The government announced that position in a legal brief late last month and is expected to expand on its arguments in an upcoming filing.
The tactic, first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit, has been increasingly invoked by federal lawyers seeking to shield the government from scrutiny by the courts.
Legal experts say it usually prevails.
“The state secrets privilege is sometimes called the ‘nuclear option,'” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists. “In almost every case, it terminates the lawsuit.”
He suspects the San Francisco case will meet the same fate.
The government invoked the state secrets privilege to defeat a similar lawsuit in 1979 that accused the National Security Agency of illegally spying on Americans.
Lawmakers erupted Thursday when USA Today reported the NSA was secretly collecting the records of phone calls by millions of ordinary Americans to build a database of all calls within the country.
The revelation renewed debate about whether Americans’ privacy rights were being violated. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he would demand phone companies to appear before the panel.
President Bush quickly weighed in. “We’re not mining or trolling through the personal lives of millions of innocent Americans,” he said.
The president confirmed in December that the NSA has been conducting warrantless surveillance of calls and e-mails thought to involve al-Qaida terrorists.
Experts said the Bush administration has turned often to the state secrets defense, from espionage cases and patent disputes to routine employment discrimination lawsuits.
On Friday, citing the state secrets defense, the government urged a federal judge in Virginia to block a lawsuit filed by a German national who says he was illegally held in a CIA-run prison in Afghanistan for four months and tortured.
The Supreme Court upheld the defense as recently as January, when it rejected an appeal from a former covert CIA officer who accused the agency of race discrimination.
The high court first recognized the doctrine in 1953, when it dismissed a lawsuit against the government brought by family members of people killed in a plane wreck while testing secret electronic surveillance equipment.
Gregory Sisk, an expert on the state secrets doctrine at the St. Thomas School of Law in Minneapolis, Minn., said legal precedent dictates that judges should give the “utmost deference” to the government when it raises the privilege.
“The thesis is that the courts lack the competence to second-guess the executive on military needs or national security threats,” he said.
Electronic Frontier Foundation’s lawsuit, filed in January, differs slightly from past cases in that it does not name the government, instead targeting AT&T.
The group accuses the telecommunications giant of cooperating with the NSA to make all communications on AT&T networks available to the spy agency without warrants.
Legal experts suggest it’s possible for the judge to rule on whether the president possesses wartime powers to authorize warrantless eavesdropping in the United States without disclosing any classified or sensitive material.
“I’m not surprised that the defense is being asserted,” said Carl Tobias, a professor at the University of Richmond School of Law. “There’s no reason necessarily that the case should be dismissed.”
AT&T, the San Antonio-based telecommunications giant, says it is following all applicable laws.
U.S. District Judge Vaughn Walker has scheduled a hearing Wednesday to determine whether documents supplied to the Electronic Frontier Foundation by a former AT&T technician should remain under seal.
The case is based largely on the technician’s documents, which the technician and EFF assert show that the NSA is capable of monitoring all communications on AT&T’s network after the NSA installed equipment at AT&T offices in San Francisco and elsewhere.
The case is Hepting v. AT&T Inc., 06-0672.