The Guardian reports: The Obama administration is invoking an obscure legal privilege to avoid judicial scrutiny of its secret collection of the communications of potentially millions of Americans.

Civil liberties lawyers trying to hold the administration to account through the courts for its surveillance of phone calls and emails of American citizens have been repeatedly stymied by the government’s recourse to the “military and state secrets privilege”. The precedent, rarely used but devastating in its legal impact, allows the government to claim that it cannot be submitted to judicial oversight because to do so it would have to compromise national security.

The government has cited the privilege in two active lawsuits being heard by a federal court in the northern district of California – Virginia v Barack Obama et al, and Carolyn Jewel v the National Security Agency. In both cases, the Obama administration has called for the cases to be dismissed on the grounds that the government’s secret activities must remain secret.

The claim comes amid a billowing furore over US surveillance on the mass communications of Americans following disclosures by the Guardian of a massive NSA monitoring programme of Verizon phone records and internet communications.

The director of national intelligence, James Clapper, has written in court filings that “after careful and actual personal consideration of the matter, based upon my own knowledge and information obtained in the course of my official duties, I have determined that the disclosure of certain information would cause exceptionally grave damage to the national security of the United States. Thus, as to this information, I formally assert the state secrets privilege.”

The use of the privilege has been personally approved by President Obama and several of the administration’s most senior officials: in addition to Clapper, they include the director of the NSA Keith Alexander and Eric Holder, the attorney general. “The attorney general has personally reviewed and approved the government’s privilege assertion in these cases,” legal documents state.

In comments on Friday about the surveillance controversy, Obama insisted that the secret programmes were subjected “not only to congressional oversight but judicial oversight”. He said federal judges were “looking over our shoulders”.

But civil liberties lawyers say that the use of the privilege to shut down legal challenges was making a mockery of such “judicial oversight”. Though classified information was shown to judges in camera, the citing of the precedent in the name of national security cowed judges into submission. [Continue reading…]