July 21, 2006

First Thoughts On EFF vs AT&T Ruling

I just did a quick read-through of the ruling in the EFF vs AT&T case.

My first thought was that there is probably an order going out to all agencies in the executive branch to clam up, to neither confirm or deny anything.  In practice this will probably be done with vigor in accord to the long established principle of CYA.  So, if we start seeing people in Federal agencies who won't even confirm or deny their own existence or the that the sun came up in the morning, we'll know why.

My second thought is that the Court did not address the most basic question - whether there really is a "state secret" privilege that can be exercised by the Executive and what it's scope might be.  I felt that the Court didn't really want to engage on that question.  I personally have trouble locating the precise Constitutional sources of "state secrets" and wonder whether it would better to have Congress enact appropriate legislation on the matter.  Indeed I wonder whether Congress may have already defined the limits of "state secrets" when it passed laws regarding the classification of materials.

This ruling certainly doesn't guarantee success to EFF - far from it - but it is very refreshing to see a judge who has the guts to consider the issue rather than meekly acceding to naked claims from the Executive.

Posted by karl at July 21, 2006 1:31 AM