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Bush wants att eavesdropping charges dropped { May 14 2006 }

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http://www.latimes.com/news/nationworld/nation/la-na-spy14may14,1,4237181.story?coll=la-headlines-nation&track=crosspromo

Justice Department Asks U.S. Judge to Dismiss AT&T Suit
Possible damage to national security is cited in the case related to domestic eavesdropping. Negroponte's office and the NSA join in request.
By Joseph Menn and Josh Meyer
Times Staff Writers

May 14, 2006

SAN FRANCISCO — The Justice Department on Saturday asked a federal judge to throw out an eavesdropping lawsuit against AT&T Corp., citing possible damage from the litigation to national security.

Officials wrote that the lawsuit by AT&T customers would bring up matters too sensitive for public discussion. The 34-page filing was bolstered by statements from John D. Negroponte, who is director of national intelligence, and from Lt. Gen. Keith B. Alexander, director of the National Security Agency.

The two said they could neither confirm nor deny specific allegations without risking the disclosure of secret methods. Longer versions of all three documents were filed with the judge under seal, where opposing attorneys said they would be unable to read them.

The arguments came as the Bush administration was attempting to avoid congressional and public debates on the details of the NSA's controversial surveillance activities since the attacks of Sept. 11, 2001.

Last week, after press reports showed that the NSA had access to domestic calling records from three of the four major telephone companies, a number of legal experts said the program appeared to violate privacy laws and restrictions on spying within U.S. borders.

The San Francisco case dates from earlier reports, including accounts that the NSA listened in on phone calls with one end in the U.S., and that the agency was conducting widespread data-mining, scanning the activities of phone company customers in search of patterns or connections to terrorists.

None of the activities were approved by the Foreign Intelligence Surveillance Court, which was established in 1978 to secretly authorize taps on the communications of suspected foreign agents on U.S. soil.

In the new court papers, federal officials argued that whether the operations were legal or not, they involved secrets.

The administration said in December that the NSA interception of international phone calls was the country's most highly classified spy project.

"Adjudication of whether the alleged surveillance activities have been conducted within lawful authority cannot be resolved without state secrets," wrote Assistant Atty. Gen. Peter D. Keisler and other lawyers on the case.

The Justice team recounted the events of Sept. 11 and noted that "finding Al Qaeda sleeper agents in the United States remains one of the paramount national security concerns to this day."

The government was not originally a party to the case, which instead seeks to hold AT&T responsible for divulging private information to the NSA. Now that it has joined the fight, it could present insurmountable obstacles.

"The government is trying to shove the NSA and AT&T illegal spying operation under an impenetrable cloak of secrecy," said Kevin Bankston of the Electronic Frontier Foundation, a civil liberties group representing AT&T customers in the lawsuit. "They are essentially arguing that no one can ever go to court to stop illegal surveillance, so long as they claim it was done in the name of national security."

Bankston said that the essentials of the spying program had been widely reported, so that no real secrets would be revealed.

The national security argument, known formally as the state secrets privilege, is rarely invoked but often successful in derailing court challenges.

Still, the Supreme Court has held that the government has a duty to minimize its use, and some cases can continue even after some evidence has been excluded, said George Washington University law professor Jonathan Turley, a past critic of the administration's approach.

Because several U.S. lawmakers have said the program appears to be illegal, "it makes it harder for the court to simply dismiss the case," Turley said. "Clearly, [the courts] never intended for the privilege to be used to shield criminal or unlawful conduct by government officials."

And others said that judges might be reluctant to drop a matter that revolves around whether the legal process had been short-circuited by the executive branch.

"There is a concept here of judicial independence," said Marc Rotenberg, executive director of the nonprofit Electronic Privacy Information Center.

"If the executive branch gets to undertake surveillance and then gets to say, 'You don't get to second-guess our decision,' that absolutely undermines the independent judiciary," Rotenberg said.

A hearing on the Justice Department motion is scheduled for June 21 before U.S. District Judge Vaughn R. Walker.

The directorate of national intelligence did not respond to calls and e-mails seeking comment on Negroponte's request for dismissal of the lawsuit, and a National Security Agency official at the agency's Ft. Meade, Md., headquarters said he could not comment on the case.

On Saturday, President Bush defended the domestic spying program and the qualifications of his newly nominated CIA director, Gen. Michael V. Hayden, who he said had been in charge of the program while heading the NSA after the Sept. 11 attacks.

In his weekly radio address, Bush maintained that despite new details of the spying, the U.S. government has not listened in on domestic U.S. phone calls without prior court approval or done anything else to illegally curtail the civil rights of Americans.

The most recent disclosures concern the numbers dialed by callers, and the frequency and duration of those calls, but not the contents.

Bush described the domestic spying effort as part of the Terrorist Surveillance Program that he authorized after Sept. 11.

"This week, new claims have been made about other ways we are tracking down Al Qaeda to prevent attacks on America," Bush said.

"It is important for Americans to understand that our activities strictly target Al Qaeda and its known affiliates. Al Qaeda is our enemy, and we want to know their plans.

"The intelligence activities I have authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat," Bush said. "The privacy of all Americans is fiercely protected in all our activities."

In Hayden, Bush said, "the men and women of the CIA will have a strong leader who will support them as they work to disrupt terrorist attacks, penetrate closed societies and gain information that is vital to protecting our nation."

Bush urged the Senate to quickly confirm Hayden when it considers his nomination, which is to go before the Senate Intelligence Committee on Thursday.


--------------------------------------------------------------------------------
Menn reported from San Francisco and Meyer from Washington.





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