Last week a federal judge in San Francisco said a lawsuit against AT&T over its cooperation with the NSA's warrantless surveillance program could proceed, rejecting the Bush administration's argument that the case would reveal state secrets. This week a federal judge in Chicago said a lawsuit against AT&T over its cooperation with the NSA's collection of phone records cannot proceed, accepting the Bush administration's argument that the case would reveal state secrets. The crucial difference: While administration officials have acknowledged the existence of the surveillance program, they have not acknowledged the existence of the phone call database. If they're not talking about it, it must be a secret.
That argument is awfully convenient for the government, but it's not quite as worrisome as a more ambitious variation: If they're not talking about it, it must be legal. Then again, the practical result may be the same.