Decius wrote:

A federal judge yesterday threw out the case of a German citizen who says he was wrongfully imprisoned by the CIA, ruling that Khaled al-Masri’s lawsuit poses a “grave risk” of damage to national security by exposing government secrets.

OK, I'm linking to this instead of the link I posted earlier, because it contains a link to the actual decision, which is worth reading if you are interested in the subject. The judge is quite comfortable with the idea that you cannot litigate matters relating to state secrets and that only political remedies are available when there is a perception that a crime has been committed. The EFF's case seems likely to get the boot.

I'm not sure I would say that so quickly. First, the case cited here is a direct suit against the government. That is not so in the EFF suit. Second, the question is not what was done with the phone records handed over, but that they were handed over at all, so the "sources and methods" argument is thinner than in the al-Masri case.

There are also other issues at play here. The records given over are specifically not something that NSA can request (under FISA for certain), and also something that the phone companies are specifically proscribed from doing under section 222 of the common carrier regulations. The actions are unlawful in multiple ways, and this is certainly something that could be handled without crossing any lines in the state secrets claim. Even if there were such an issue, the question can be dealt with without having to go into the details of the action, similar to the question of redition Judge Ellis discusses starting on page 10 of the decision.

I'll take the opposite position and say there's nothing here to say the EFF case gets booted. In fact Judge Walker is allowing internal AT&T documents to be used, albeit under seal.

Mike the Usurper wrote:
I'm not sure I would say that so quickly. First, the case cited here is a direct suit against the government. That is not so in the EFF suit.

As far as I understand this privilege it can be applied in any suit regardless of whether the government is a party.

Second, the question is not what was done with the phone records handed over, but that they were handed over at all, so the "sources and methods" argument is thinner than in the al-Masri case.

It is. However, exactly what was handed over to exactly who exactly when and where? Those are questions they might not want to answer, that might be needed to litigate the case. Presumably their request includes a reasonable rationalization (which, of course, only the judge gets to read in full). I hope he finds a way to proceed with the case in spite of this problem, I'm just not optimistic about it.