U.S. Says Gov't, Not Court, Should Judge Spy Secrets

US says gov't, not court, should judge spy secrets

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Thu May 25, 2006 2:01am ET

SAN FRANCISCO (Reuters) - The United States government, not any court, is the best judge of whether to keep programs such as its controversial effort to eavesdrop on citizens a secret, an assistant attorney general said on Wednesday.

Peter Keisler, an assistant attorney general, and other U.S. officials made the claim in the latest filing to a lawsuit alleging that telecommunications firm AT&T illegally allowed the government to monitor phone conversations and e-mail communications.

"In cases such as this one, where the national security of the United States is implicated, it is well established that the executive branch is best positioned to judge the potential effects of disclosure of sensitive information on the nation's security," they wrote in a filing on Wednesday evening.

"Indeed, the Supreme Court has repeatedly recognized that courts are ill-equipped as an institution to judge harm to national security."

The privacy rights group Electronic Frontier Foundation says the program allows the government to eavesdrop on phone calls and read e-mails of millions of Americans without obtaining warrants. The plaintiffs are seeking an injunction that would order the government to stop the program.

President George W. Bush has acknowledged a domestic spying program under which the National Security Agency, without court warrants, has listened to international calls and monitored e-mails by U.S. citizens if one party was thought to be linked to terrorism.

The U.S. government is asking a federal court in San Francisco to dismiss the case. The judge will review the motion on June 23.

U.S. officials are asking federal Judge Vaughn Walker to review classified materials they say bolster their case that U.S. national security is at stake. Under that proposal, the plaintiffs would not have access to those materials and thus could not directly argue against them.

"The Court should consider the materials submitted by the United States in support of its assertion of the state secrets privilege in order to fully understand and avoid the dangers that would result from any such litigation," the filing said.

"In sum, the Court has the inherent authority to consider classified information in camera and ex parte without violating plaintiffs' right to due process."

In a court filing on Monday, the Electronic Frontier Foundation said their right to legal due process would be jeopardized if the judge alone reviewed the classified documents offered by the government.

"Unless a party can see and respond to evidence submitted against it, the Court's impartiality is jeopardized," they wrote. "Ex parte proceedings that limit a party's ability to participate in hearings, and to consider and even attempt to refute the government's evidence, violate the very spirit of due process."