[LINK] Fwd: DoJ asks court to put brakes on spying case

Roger Clarke Roger.Clarke at xamax.com.au
Wed Aug 2 12:38:46 AEST 2006


Am I the only one who finds the following quote utterly chilling, and 
indicative of utter hypocrisy coming as it does from a Government 
that maintains a pretence of being the champion of democracy:

>In its filing, the DoJ claims that "the decision on whether to grant
>access to classified information rests with the Executive Branch ..."



>http://arstechnica.com/news.ars/post/20060801-7402.html
>
>DoJ asks court to put brakes on spying case
>8/1/2006 7:18:08 PM, by Peter Pollack
>
>The Department of Justice (DoJ) has appealed last week's decision (PDF)
>in the AT&T spying case, and is arguing against the district court's
>recommendation to appoint an expert who would assist the court with the
>handling of classified information. Judge Vaughn Walker had previously
>requested that the parties involved submit their nominations for the
>post, in order to address government concerns over the potential release
>of sensitive documents.
>
>For those of you not following along at home, you're missing a legal
>case that could turn out to be one of the most influential of the
>decade, as well as one of the better soap operas in recent memory. By
>way of quick review: late last year, it was revealed that the National
>Security Agency (NSA) may have been monitoring domestic phone calls with
>something less than the proper degree of judicial oversight. In
>response, the Electronic Frontier Foundation filed a class action suit
>against AT&T-that company being the largest telecom accused of
>collaborating with the NSA.
>
>Nearly concurrent with a series of denials issued by AT&T came a
>revelation by whistleblower Mark Klein, who claims that there is a
>secret room tucked away at an AT&T switching center in San Francisco.
>Klein said that he had not only observed monitoring equipment being
>installed in that room, but the person installing the equipment was a
>technician whom he had recommended months earlier to an NSA agent for an
>unspecified "special job." Documents backing up Klein's assertions were
>later released to the public by Wired.
>
>In May, the Department of Justice (DoJ) got directly involved with the
>case, invoking the state secrets privilege to have the suit stopped.
>State secrets is a legal concept first articulated in the 1950s, under
>which the government can block the release of documents that it believes
>might harm national security should they be made public. In almost every
>instance since its creation, invoking state secrets has put a complete
>stop to any case in which it is applied.
>
>Not this time. In July, Judge Walker determined that "dismissing this
>case at the outset would sacrifice liberty for no apparent enhancement
>of security," and permitted the case to proceed. He also proposed
>appointing an expert to assist the court with evidence disclosure in
>order to "honor the extraordinary security concerns raised by the
>government."
>
>The DoJ is appealing the Judge's decision to let the suit move forward,
>but in a document filed on Monday (PDF), requested a stay of all
>activity in the case-including the appointment of the expert-pending the
>higher court's decision on appeal.
>
>In its filing, the DoJ claims that "the decision on whether to grant
>access to classified information rests with the Executive Branch, and
>any order by the Court appointing such an expert to review and assess
>the status of classified information would raise profound separation of
>powers concerns that should be avoided."
>
>Additionally, the document goes on to describe jurisdictional issues
>that could occur if the lower court is allowed to proceed. "Since the
>Court of Appeals may disagree with this Court's view that the case can
>proceed at all, any attempt to proceed now risks the very disclosures
>that an appeal is intended to address and the potential harm to national
>security at take-effectively destroying appellate court jurisdiction by
>mooting the significant issues on appeal."
>
>Certainly, if the case continues forward and the appellate court takes a
>long time to reach a decision, it is possible that some of what the
>government is trying to keep under wraps could come to light, rendering
>the higher court's decision moot. All the more reason to engage in a
>speedy appeals process to minimize that risk.
>
>It's hard to refrain from pointing out that the precarious course the
>DoJ now finds itself following could probably have been avoided if the
>NSA had only utilized traditional court oversight in its monitoring
>program. While many citizens probably agree that there are times when
>the government needs to conduct investigations into suspicious activity,
>it is the blanket avoidance of such oversight which raised privacy
>concerns in so many quarters and prompted the AT&T suit in the first
>place.

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

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Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW



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