By David B. Caruso
Associated Press
Sunday, May 28, 2006; A13
NEW YORK, May 27 -- The Bush administration has asked federal judges in New York and Michigan to dismiss a pair of lawsuits filed over the National Security Agency's domestic eavesdropping program, saying litigating them would jeopardize state secrets.
In papers filed late Friday, Justice Department attorneys 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.
Director of National Intelligence John D. 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 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 (CCR) has asked a judge to stop the program, saying it is 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 that the eavesdropping was made legal by a congressional resolution passed after the Sept. 11, 2001, terrorist attacks. "Can the president tell the courts which cases they can rule on?" asked Shayana Kadidal, a CCR attorney. "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 be properly judged only by understanding "the specific threat facing the nation." They noted: "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."