Wired‘s excellent Threat Level blog has a blow-by-blow description of the proceedings in the EFF/AT&T spying case (which was heard in conjunction with the Al-Haramain case). It sounds like the judges are at least sympathetic to allowing the cases go forward.
The government and AT&T’s argument strikes me as proving a little bit too much:
AT&T attorney Michael Kellogg (right, entering the courthouse) has taken the podium, and, not surprisingly, insists the case has to be dismissed. He says AT&T customers have no actual proof or direct knowledge that their communications were forwarded to the government without warrants.
“The government has said that whatever AT&T is doing with the government is a state secret,” Kellogg says. He adds, “As a consequence, no evidence can come in whether the individuals’ communications were ever accepted or whether we played any role in it.” (Back at Wired, THREAT LEVEL’s head just exploded –klp)
So if I’m understanding this correctly, a judge is obligated to dismiss a case as soon as the government asserts a state secrets privilege, because any inquiry into whether the information in question is actually a state secret could itself reveal state secrets. Which, in practice, would mean that “state secret” is a magic incantation that allows the government to do whatever it wants with no court scrutiny whatsoever. Somehow, I don’t think that’s what the founders had in mind when they wrote the Fourth Amendment.
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