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In particular, the government contends that the executive has inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes, id at 24 (citing In re Sealed Case, 310 F3d 717, 742 (For Intel Surv Ct of Rev 2002)), and that the warrant requirement does not apply here because this case involves “special needs” that go beyond a routine interest in law enforcement, id at 26.

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The first step in determining whether a piece of information constitutes a “state secret” is determining whether that information actually is a “secret.” Hence, before analyzing the application of the state secrets privilege to plaintiffs’ claims, the court summarizes what has been publicly disclosed about NSA surveillance programs as well as the AT&T documents and accompanying Klein and Marcus declarations.
Within the last year, public reports have surfaced on at least two different types of alleged NSA surveillance programs, neither of which relies on warrants. The New York Times disclosed the first such program on December 16, 2005. Doc #19 (Cohn Decl), Ex J (James Risen and Eric Lichtblau, Bush Lets US Spy on Callers Without Courts, The New York Times (Dec 16, 2005)). The following day, President George W Bush confirmed the existence of a “terrorist surveillance program” in his weekly radio address:

GW said:

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In the weeks following the [September 11, 2001] terrorist attacks on our Nation, I authorized the National Security Agency, consistent with US law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist
organizations. Before we intercept these communications, the Government must have information that establishes a clear link to these terrorist networks.

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AT&T also contends it is entitled to statutory, common law and qualified immunity.

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