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Third Case Bush had to Squelch with Protect America Act

Total Information Awareness, resurgent?In work overnight, J. Clifford has made an interesting suggestion: that George W. Bush pushed so hard and so fast for the Congress to pass the Protect America Act of 2007 because he was in imminent danger of having the full extent of his administration’s surveillance activities exposed in court. This suggestion makes sense, given Attorney General Alberto Gonzales’ recent admission that there exist “intelligence activities that have not been publicly disclosed and that remain highly classified.” J. Clifford’s suggestion is also is backed up by a recent decision in the federal courts to let citizens’ lawsuits against the government proceed to the examination of details about government surveillance in court — during the August Congressional recess. Details about the extent of the government’s warrantless espionage against its own people would be put on the table on August 15, 2007. That, J. Clifford suggests, is why Bush administration pushed so manically for the Protect America Act, complete with its provisions banning citizens from bring lawsuits, to be passed before Congress went into recess this week.

J. Clifford has already identified two sets of lawsuits brought against the Bush administration that were proceeding too quickly and too successfully for the Bush administration’s comfort:

1. A set of lawsuits brought by Connecticut, Missouri, Maine, New Jersey, and Vermont to uncover the extent to which telecommunications corporations had violated their own policies by sharing private data with the government without a government. In response, as the judge in the case summarizes, the Bush administration asserted that the five states couldn’t even investigate the activities of corporations:

The government seeks to enjoin state officials in
Missouri, Maine, New Jersey, Connecticut and Vermont from
investigating various telecommunication carriers concerning their
alleged disclosure of customer telephone records to the National
Security Agency (NSA)
based on the Supremacy Clause of the United
States Constitution, the foreign affairs power of the federal
government and the state secrets privilege.

2. Hepting v. AT&T — a case against one of those collaborating telecommunications corporations in which a hearing with “state secrets” and all was scheduled to occur on August 15 — that’s next week. This hearing was enabled by the recent finding of a judge in the 5-state case that “state secrets” of the Bush administration could indeed be considered in the lawsuits brought by citizens against the government.

A third case is case number 06-36083, Al-Haramain Islamic v. Bush, also brought to the 9th Circuit Court of Appeals. Al-Haramain Islamic is a non-profit organization based out of Oregon which says it received leaked information showing that it was the subject of surveillance without a warrant, and it is filing suit to demonstrate this in court and achieve legal remedies. A public brief (partially redacted) states that this third case has been consolidated with Hepting v. AT&T.

The public brief, made available by the EFF, was filed by the Bush administration and contains the usual Bushian circular logic about how citizens have to be kept in the dark for their own good:

Plaintiffs concede that, under Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.
1998), dismissal is required if the very subject-matter of their suit is a state secret. Br.
12. Plaintiffs argue that the TSP’s existence is not a secret. Br.21. However, while
the fact that the TSP existed is not a secret, its methods, means, and targets have never
been divulged, and any further disclosure of information regarding the TSP would
jeopardize national security. ER 554. Even plaintiffs acknowledge that the TSP
remains a “secret program.” Br. 6. Thus, the very subject matter of plaintiffs’
case-whether plaintiffs were surveilled under the TSP (and, if so, whether that
program was unlawful)-is a state secret….

Plaintiffs also fail to refute our showing that this litigation must be dismissed
because the state secrets privilege precludes adjudication of their claims on the
merits. Litigation of plaintiffs’ constitutional and statutory claims would require
careful consideration of the facts and circumstances surrounding the TSP and any
application of the TSP to plaintiffs (including facts concerning whether any
surveillance constituted “electronic surveillance” within the meaning of FISA)-an
inquiry foreclosed by the state secrets privilege.

The Bush administration argues, in other words, that citizens and citizen groups cannot file suit against government to establish that they’ve been the subject of a secret program of warrantless surveillance by the state, because such a program if it exists would be revealed by the lawsuit. According to the Bush administration, the ability of the government to keep its secret takes priority over the constitutional right of the citizen to sue the government and the constitutional right of the individual to be free of warrantless searches.

This is the “state secrets” assertion that Judge Vaughn Walker rejected on July 24 in the case of the five states (and previously in the case of Hepting v. AT&T). Without the state secrets assertion, the case and all its discoveries could go forward. Could the ensuing discovery of the extent to which we were being watched without a warrant be what drove the administration to act? Is this what the Bush administration had to fear? Is this what the Bush administration had to stop with the Cover Our Asses Act of 2007?

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