Department of Justice lawyers recently escalated their efforts to prevent courts and administrative agencies from reviewing the NSA’s domestic surveillance program. On June 6, the DoJ filed a statement supporting a motion by AT&T to consolidate 28 class actions challenging the NSA program.  The DoJ said in the statement that it "intends to assert the military and state secrets privilege . . . in those actions to seek their dismissal." The DoJ also sued the Attorney General of New Jersey and other New Jersey officials to prevent them from subpoenaing phone company records.  The New Jersey officials are trying to determine whether the phone companies broke the law by providing call records to the NSA without a court order.

These are just the latest efforts by the DoJ to prevent judges and agencies from deciding whether the NSA’s domestic surveillance programs violates the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801, et seq., or Title III of Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 181, et seq., which require court orders for electronic surveillance. The Administration earlier invoked the state secrets privilege in support of its motions to dismiss three cases brought by the ACLU, the Center for Constitutional Rights, and the Electronic Frontier Foundation, which claim that the NSA program violates FISA, Title III, and the Constitution. See American Civil Liberties Union, Center for Constitutional Rights and Electronic Frontier Foundation.

Scholars and constitutional lawyers who have reviewed DoJ’s legal defense of the NSA program say the DoJ’s arguments are meritless. See, e.g., Curtis A. Bradley, et al., Letter to Members of Congress (Jan. 9, 2006). It appears that, despite the DoJ’s public statements that the NSA’s domestic surveillance program is "well within the law," the DoJ is trying hard to prevent a decision on the merits. 

At issue in the NSA cases is whether the courts will allow the executive to break the law with impunity. "[W]hen agencies violate the constitutional rights of citizens and commit crimes, it is perverse and antithetical to the rule of law that they may avoid judgment in court and exposure of those activities to the public by refusing to disclose inculpatory information." William G. Weaver and Robert M. Pallitto, "State Secrets and Executive Power," 120 Political Science Quarterly, No. 1, 85, 90 (2005).   Enough about the NSA’s domestic surveillance program has been disclosed by the media and conceded by the Administration for the courts to find that the program violates FISA and Title III. The courts hearing the DoJ’s state secret dismissal motions should deny the motions and decide the cases on the merits.