Update on the Domestic Spying Scandal

The Justice Department has suffered a major setback in its attempts to avoid answering lawsuits asserting that the National Security Agency's domestic spying program is illegal.

At the heart of the case is whether the Executive Branch has the power to head off lawsuits against the government by claiming a "state secrets" privilege, in this case the president's right to secretly authorize the program under his so-called expanded powers during the War on Terror.

Senior U.S. District Judge Anna Diggs Taylor of Detroit denied the Justice Department's request to put off a hearing on the merits of a challenge to the NSA program in her Court until after she had ruled on the government's claim that the case must be dismissed based on the "state secrets privilege."

Notes SCOTUSBlog:

That is a significant rebuff to the Department's efforts, now spread out in a number of cases, to put a swift end to claims in court that President Bush acted illegally and unconstitutionally in authorizing the NSA, after the 2001 terrorist attacks, to monitor calls or e-mails suspected of being to or from terrorists. In fact, the Detroit judge's order is such a serious setback that the Justice Department might be expected to try to challenge it with an immediate appeal to the Sixth Circuit Court, and perhaps to the Supreme Court. Judge Taylor's action amounted to significantly more than a case-management order.

SCOTUSBlog has more here.