Original URL: http://www.theregister.co.uk/2009/04/06/obama_doj_seeks_dismissal_wiretap_lawsuit/

Obama's DoJ defends Bush-era wiretaps

Telecom spy program a 'state secret'

By Austin Modine

Posted in Security, 6th April 2009 23:41 GMT

The US Justice Department under President Obama is invoking Bush Administration tactics to dismiss a lawsuit alleging federal agents engaged in illegal phone and email surveillance of ordinary US citizens.

A motion submitted to US District Judge Walker on Friday claims disclosing information on the National Security Agency's warrentless wiretapping program would "cause exceptionally grave harm to national security."

The 36-page brief invokes"state secrets" privileges to keep mum on the case, and claims the 2001 Patriot Act grants government agencies an umbrella "sovereign immunity" for domestic spy programs.

In September 2008, the Electronic Frontier Foundation backed a handful of AT&T customers suing President Bush, the NSA, and nine other public officials to stop what the group characterizes as an "illegal and unconstitutional dragnet communications surveillance in concert with major telecommunication companies." The lawsuit was nearly a duplicate to one the EFF filed earlier against AT&T's practice of funneling internet traffic into a secret room in its San Francisco central office for government spooks to pour over. That first lawsuit was stalled when Congress granted retroactive immunity to telecoms for whatever spying activities they may have been involved with – so the group decided to go after holding government officials accountable for allegedly playing loose and easy with US Constitution and various statutory provisions.

The buck can't stop here, the DoJ said today. The filing argues the statutory claims of the seventeen-count complaint against the US are invalid because congress hasn't waived sovereign immunity granted by the Patriot Act of 2001. Constitutional claims should also be waived because "at every stage," the claims would "require or risk the disclosure of information that is properly subject to the state secrets privilege."

The filing claims EFF's allegations that government agencies collected content on millions of ordinary US citizens is false, and only helped themselves to a bit of eavesdropping if "a participant was reasonably believed to be associated with al Qaeda or an affiliated terrorist organization."

The EFF fired back today by heaping on harsh Bush Administration comparatives.

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," EFF senior staff attorney Kevin Bankston."But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that much-publicized warrentless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

A copy of the DoJ's motion to dismiss is available here. (PDF) ®