The Obama administration, trying to derail a lawsuit over former President George W. Bush’s authority to wiretap Americans without court permission, has refused to take a position on the program’s legality and says a federal judge can’t decide that question because the crucial facts are national secrets.
A ruling on whether Bush exceeded his constitutional powers would be “an improper advisory opinion” because there’s no proof – without delving into confidential, off-limits evidence – that the government wiretapped the plaintiff in the suit, the Justice Department said late Thursday.
“Information protected by the state secrets privilege is necessary to litigate the matter,” government lawyers told Chief U.S. District Judge Vaughn Walker in San Francisco. Walker has scheduled a hearing Sept. 23 to decide whether to dismiss the suit or proceed to a ruling on whether the surveillance program was legal.
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Related: Court filing [pdf], courtesy of Threat Level.