The Bush administration, seeking to hide information about the National Security Agency’s spying on Americans behind the cloak of “executive privilege, has asked federal judges in New York and Michigan to dismiss a pair of lawsuits by claiming the cases jeopardize state secrets.
In papers filed late Friday, Justice Department lawyers said it would be impossible to defend the legality of the spying program without disclosing classified information that could be of value to suspected terrorists.
National Intelligence Director John Negroponte invoked the state secrets privilege on behalf of the administration, writing that disclosure of such information would cause “exceptionally grave damage” to national security.
The administration laid out some of its supporting arguments in classified memos that were filed under seal.
The government’s motion, widely anticipated, involves two cases challenging an NSA program that allows investigators to eavesdrop on Americans who communicate with people outside the country suspected of terrorist ties.
In New York, the Center for Constitutional Rights has asked a judge to stop the program, saying it was an abuse of presidential power. The American Civil Liberties Union and other groups filed a similar lawsuit in Detroit.
For decades, U.S. law enforcement and intelligence agencies have been required to seek court approval before using electronic surveillance on Americans. That was not done by the NSA in the program at issue, but President Bush has said the eavesdropping was made legal by a congressional resolution passed after the Sept. 11 terrorist attacks.
Shayana Kadidal, an attorney for the Center for Constitutional Rights, called the administration’s motion “undemocratic.”
Ample safeguards could be put in place to allow the case to continue without disclosing classified information, he said. The center has also argued that the court already has enough information to decide whether the program was legal.
“The Bush administration is trying to crush a very strong case against domestic spying without any evidence or argument,” Kadidal said in a written statement. “Can the president tell the courts which cases they can rule on? If so, the courts will never be able to hold the president accountable for breaking the law.”
Justice Department attorneys said in their legal brief that the legality of the president’s actions could only be properly judged by understanding “the specific threat facing the nation and the particular actions taken by the president to meet that threat.”
“That understanding is not possible without revealing to the very adversaries we are trying to defeat what we know about them and how we are proceeding to stop them,” they wrote.