Nicely Put

The smart way around telecom immunity

If the administration really cared about the telecoms, it would simply allow them to use these legal documents to defend themselves in court.

But it wont. Instead, the administration invokes a little-known rule of evidence called the state secrets privilege, which allows the executive branch to avoid revealing evidence—or even litigating cases—if it claims that doing so might reveal a “state secret.” Bush lawyers have used the state secrets privilege to convince a federal appeals court to dismiss an ACLU lawsuit against the National Security Agency asking a court to declare the spying program illegal. And in the cases that have been brought against the telecoms, the administration has invoked the same privilege to argue that courts cant let the cases go forward because the telecoms would be in the unfair position of not being able to defend themselves—because, of course, the administration wont let the companies turn over the relevant documents. Retroactive immunity isnt about letting the telecoms off the hook. Its about hiding the administrations own legal claims from any judicial or public scrutiny. The administration wants to keep these cases out of court so it can cover up for itself.