Late last night, the Government filed its reply brief, providing a last round of written briefing in advance of next week's hearing in our case against AT&T for collaborating with the Government's surveillance program. Finally the Administration has come out and flatly said what it has hinted at throughout its arguments: that the Program is above the law. The Government wrote that
the court—even if it were to find unlawfulness upon in camera, ex parte review—could not then proceed to adjudicate the very question of awarding damages because to do so would confirm Plaintiffs' allegations. (emphasis added)
Essentially the Government is saying that, even if the Judiciary found the wholesale surveillance program was illegal after reviewing secret evidence in chambers, the Court nevertheless would be powerless to proceed, because the Executive has asserted that the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it. In short, the Government asserts that AT&T and the Executive can break the laws crafted by Congress, and there is nothing the Judiciary can do about it.
We intend to vigorously oppose this radical assertion of power. Please consider donating to EFF and help stop the illegal spying.