Sunday, May 28, 2006

The Bush administration has asked federal judges in New York and Michigan to dismiss two 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 lawyers said it would be impossible to defend the program's legality without disclosing classified information that could aid terrorists.

John D. Negroponte, the director of national intelligence, invoked the state secrets privilege, writing that disclosure would cause "exceptionally grave damage" to national security. The administration laid out some of its supporting arguments in classified memos, filed under seal.

The motion, widely anticipated, involves two cases challenging an N.S.A. program that allows investigators to eavesdrop on Americans who communicate by phone or e-mail with people outside the country suspected of terrorist ties.

The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures -- from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants -- but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.

The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in the cases of Yaser Hamdi and Jose Padilla -- two American citizens whom the administration abducted (in Padilla's case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming -- based solely on George Bush's secret decree -- that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.

But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush's decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla's case, the administration -- one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla's 3 1/2 year lawless incarceration -- suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla's claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.