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DOJ Moves to Dismiss NSA Lawsuit Under State Secrets Doctrine

The Justice Department has filed a motion to dismiss the Electronic Frontier Foundation’s lawsuit against AT&T for its alleged compliance with the NSA’s Terrorist Surveillance Program.  The DOJ motion claims that the lawsuit cannot go forward because litigating the merits would require disclosure of national security secrets that (if disclosed) would cause major harm to the security of the United States.

I assume that this is the first of many such motions that DOJ will be filing in NSA-related lawsuits.  The questions raised are vitally important ones, both from a rule-of-law standpoint and a national security standpoint.  If the courts agree that litigation involving the NSA program can’t go forward on state secrets grounds, it will be much less likely that these issues will come up before the courts.  On the other hand, if the courts let the cases go forward, it may cause considerable risks to national security.

In the criminal context, Congress has passed a law to deal with this type of dilemma.  That law is the Classified Information Procedures Act, and it regulates the use of classified information in criminal case via ex parte, in camera review by the courts.  CIPA applies only in criminal cases, though, so it wouldn’t apply here.

Does any one have any ideas about what a law might look like to serve a similar function in the civil context? Or does the state secrets doctrine already cover this?  It’s a new area for me, but I have a feeling we’re going to be getting more familiar with it in the next few weeks and months.