August 14, 2007 (LPAC)--Two senior Justice Department officials gave a background briefing to selected reporters yesterday, to put out the line to the press that no one will ever be able to challenge the constitutionality of the new post-FISA wiretapping regime, or find out how the Administration has been monitoring phone calls and e-mails of Americans: the Administration expects that its actions will be protected as "state secrets" by the courts.

The occasion for the "you'll-never-catch-us" briefing, is that two cases challenging the Administration's warrantless wiretapping program are coming up for argument before the 9th Circuit Court of Appeals in San Francisco tomorrow. In one case, a Saudi charity accused of terrorist ties, is arguing that the group, including two attorneys in the U.S., were illegally spied upon. They know this because the government inadvertently provided them with "top secret" NSA logs of intercepted telephone calls between the charity and its attorneys; the government subsequently forced them to return the logs, precluding their use as evidence.

The second case includes evidence of secret NSA facilities in the AT&T building in San Francisco and in other cities. According to affidavits submitted in the case, this permitted the NSA to tap into the entire stream of calls and e-mails routed though such telecommunications hubs.

In both cases, the Justice Department is demanding that the cases be thrown out of court, because they could not be tried without revealing classified information which is protected under the legal doctrine of "state secrets." The government has invoked the "state secrets" privilege in about 50 lawsuits challenging Dick Cheney's wiretap program, and has also used it to throw out a civil suit brought by a victim of the Administration's "extraordinary rendition" and torture program.

When one of the DOJ officials was asked if there would be any way for someone to challenge the warrantless surveillance program, he answered, "In the current context, no," according to Associated Press.

Cindy Cohn, legal director of the Electronic Frontier Foundation, one of the plaintiffs in the AT&T case, says of the DOJ argument: "They are saying, 'We can violate the Constitution, and nobody can do anything about it.'"