The director of national intelligence has asked the courts to throw out a class action suit against the government, saying that if the court hears classified information from the program to prove its worth, then the terrorists win.
The written affidavit from James Clapper Jr. comes in response to a class-action lawsuit being waged in California by various civil rights and social-justice groups, including the Electronic Frontier Foundation, ostensibly to protect citizens' privacy. In the case, the judge requested proof that the spying program is constitutional and has actually prevented terrorist attacks.
But Clapper doesn't want to give that information over to the courts. By invoking the state secrets privilege, which would block lawsuits for national security reasons, Clapper's response is effectively the equivalent of "don't worry about it, we need this."
"Disclosing or confirming further details about these activities could seriously undermine an important tool — metadata collection and analysis — for tracking possible terrorist plots,” he wrote, and could reveal methodology, thus “helping foreign adversaries evade detection.”
The document, which for the first time acknowledges the email/phone call collection program exists, also included past national intelligence directors' defense of the program in the face of legal requests to find out just how it works, including this from David Blair, who held the job from 2009-10:
To do so would obviously disclose to our adversaries that we know of their plans and how we may be obtaining information.
As was widely believed, the affidavit also formally revealed that the program was authorized in October of 2001, under the auspices of the Patriot Act after the 9/11 terrorist attacks.
Ironically, this judicial-level intervention by the Obama administration comes in the same week as a key panel came out with a series of recommendations to reconfigure the NSA, one of which included adding more layers of judicial oversight to create a check for its controversial spying program, including by requiring the NSA to go to court to get phone records from a non-governmental third party. President Obama has suggested he will consider the recommendations come January.
The invocation of the state secrets privilege also comes three years after the Obama administration announced that it would redefine and restrain uses of the legal tactic.
This article is from the archive of our partner The Wire.
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