American Civil Liberties Union

DETROIT -- The federal government should not be allowed to avoid judicial review of the National Security Agency's illegal spying program by invoking the state secrets privilege, argued the American Civil Liberties Union in legal papers released today.

The move is the latest step in the ACLU's landmark lawsuit challenging the NSA program. The government is attempting to prevent the case from going forward by invoking a legal doctrine known as the "state secrets privilege."

"This administration is radically trying to expand the state secrets privilege to shield its own illegal conduct," said Ann Beeson, ACLU Associate Legal Director. "There are no more facts - let alone secret ones - needed for the court to decide whether the president can violate the law and the Constitution by spying on innocent Americans without a warrant."

The ACLU argued that the government cannot claim that the case involves state secrets because it has acknowledged and defended the spying program to the public. In fact, on January 19, the Justice Department issued a 40-page White Paper discussing in detail its legal defenses and justifications for the NSA program. President Bush and Vice President Cheney have discussed and promoted the program numerous times at news conferences and other public events.

Government officials have also publicly testified before Congress about the legality, scope and basis for the NSA surveillance program on several occasions.

The ACLU warned that dismissing the entire lawsuit on state secrets grounds would be an attack on the authority of the courts to review any egregious action taken by the executive branch, including the torture of Americans within U.S. borders.

While the government cloaked its motion in "rhetoric about state secrets and presidential duties," its real purpose is clear, said the ACLU. The government seeks to dismiss not just the ACLU suit, but to prevent any court from ruling on the legality of the program. The government has also moved to dismiss other legal challenges against the NSA and has intervened to urge dismissal of lawsuits filed against telecommunications companies around the country seeking to block their participation in the program.

"Allowing the Executive to violate the law and then avoid judicial scrutiny altogether by invoking the state secrets privilege as a bar to litigation would dangerously concentrate all executive, legislative, and judicial power in one branch of government," argued the ACLU in its brief, which was filed in federal court last night.

Courts have previously recognized that the state secrets privilege should not be used lightly, noting that there are grave consequences when it is used to dismiss an entire case.

In the 1953 case, United States v. Reynolds, the Supreme Court articulated the basis for the state secrets privilege. The government had claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security. Nearly 50 years later, in 2004, the truth came out: the accident report contained no state secrets, but instead confirmed that the cause of the crash was faulty maintenance of the B-29 fleet.

The ACLU's federal lawsuit was filed in U.S. District Court in the Eastern District of Michigan. A hearing to discuss the state secrets privilege will be held on July 10 before Judge Anna Diggs Taylor in Detroit.

The government also filed a motion this week to consolidate the ACLU lawsuit with other NSA challenges across the country, and transfer the case to the District of Columbia. The ACLU intends to oppose the motion.

Attorneys in the case are Beeson, Jameel Jaffer, Melissa Goodman and Scott Michelman of the national ACLU, and Michael Steinberg and Kary Moss of the ACLU of Michigan.

The ACLU brief is online at www.aclu.org/safefree/nsaspying/25954lgl20060620.html

For more legal documents and background on this case, go to www.aclu.org/nsaspying