The Bush administration has asked federal judges in New York and Michigan to dismiss a pair of lawsuits filed over the National Security Agency’s domestic eavesdropping program, saying litigating them would jeopardize state secrets.
… Justice Department attorneys said in their legal brief that the legality of the president’s actions could be properly judged only by understanding “the specific threat facing the nation.” They noted: “That understanding is not possible without revealing to the very adversaries we are trying to defeat what we know about them and how we are proceeding to stop them.”
if this tactic persists—if the administration continues to broadly assert this privilege and courts continue to accept it—the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the “war on terror” violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it’s a secret.
The Bush administration has fought at every turn to limit scrutiny of its conduct since Sept. 11. And, unless courts start to reject its assertion, the administration may have found in the state secrets privilege the ultimate tool for making its actions invisible.
If only we could write some kind of document establishing the rights of the governed to demand that their rulers abide by the law …