Down the Rabbit-Hole: Hepting v. AT&T
Dahlia Lithwick at Slate has an interesting article reviewing the government's arguments in Hepting v. AT&T -- specifically the claim the lawsuits should be dismissed because they themselves pose a threat to national security.
The consolidated cases in Hepting involve a secret room from which the NSA, using AT&T facilities, allegedly listens in on phone calls, and a phone log of an Islamic charity.
Lithwick writes:
According to government lawyers, even to discuss the programs at issue in this case is to harm the national interest. Whether or not they even exist is also a secret. Any proof of the programs' existence cannot be tested because of the secrecy thing. One of the judges on the panel, M. Margaret McKeown, complained of feeling "like I'm Alice in Wonderland" at Wednesday's arguments. No wonder. Government lawyers increasingly behave less like attorneys than grim constitutional bouncers. . . .[A]rguments like those being made in the NSA cases—arguments that executive claims of state secrets are, like rabbit holes, bottomless places where all logic and scrutiny fail—are more troubling today than ever. Because now Jose Padilla—the details of whose abuse in government detention is also a "state secret"—faces the prospect of a lifetime in prison.
Secrets are not a legal argument so much as a legal conclusion, a topsy-turvy claim by the government that everything the President does in secret is necessarily legal.