White House Tries to Prevent Judge From Ruling on Surveillance Efforts

White House Tries to Prevent Judge From Ruling on Surveillance Efforts
nytimes.com

  So, [Clapper] said, he was continuing to assert the state
  secrets privilege, which allows the government to seek 
  to block information from being used in court even if 
  that means the case must be dismissed.

We'll need someone like rayiner to weigh in (I have almost zero legal expertise), but some wikipedia reading says that while the state secrets privilege was recognized by the supreme court, the government's case was later found to be fraudulent [1]. Clapper's assertion is such a glaring abuse that I would hope it could set up another supreme court challenge to the privilege. More wikipedia-ing seems to suggest that might be possible [2].

I'm optimistic. The parties who have a stake in the surveillance apparatus have been on the defensive now for half a year, and it's obvious they're losing ground (example FTA: "Still, Mr. Clapper’s description of the program as 'an important tool' for tracking possible plots was a downgrade in rhetorical urgency. In earlier, now-declassified court filings, he and other officials had portrayed it as 'an essential tool.'"). I do actually have hope that we could see some real reforms, and for someone like me to say something like that is a big deal.

[1] http://en.wikipedia.org/wiki/State_secrets_privilege#Supreme...

[2] http://en.wikipedia.org/wiki/State_secrets_privilege#cite_no...

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[1] http://smile.amazon.com/gp/charity/change.html

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That's definitely a time-honored political ploy, but it doesn't look like this issue will go away any time soon since most of Snowden's massive cache of information hasn't been published yet. As more NSA documents come to light, this will keep generating new headlines. It's likely to still be in the news during the next presidential election.

Ordinarily, when the government asserts its state-secrets privilege (which dates only to the 1950s), a judge privately reviews the evidence to see whether it seems plausible that proceedings would reveal state secrets.

Now that the admistration has asserted its secrets privilege in this case, the appellate court can very appropriately circumscribe the privilege, ruling that it cannot be asserted to prevent a challenge to activities that appear unconstitutional, prima facie, under the private review that is already required.

That would be a great outcome, one that might not only roll back the NSA's surveillance programs, but also reinvigorate our most important check on executive power.