On Friday, the Administration filed yet another court brief contending that the case against AT&T for its cooperation in the warrantless wiretapping program must be dismissed, for fear that the bad guys might figure out the well known fact that AT&T had indeed participated. In response to the Director of National Intelligence's admission (transcript) that the companies who "were being sued" "had assisted" the wiretapping program, the Administration attempts to minimize the admission:

The DNI did not confirm any specific intelligence-gathering relationship between the Government any any specific company, and he did not state that all companies "being sued" has assisted the Government as to the TSP. Whether or to what extent any particular company (including AT&T) entered into an intelligence gathering relationship with the Government therefore remains a state secret.

Yet on the very same day, the Administration went to work on gathering political support for its proposal to grant retroactive immunity to the telecommunications giants. Over a dozen government officials spoke to the Associated Press "on condition they not be identified because sensitive negotiations with Congress are ongoing." Despite the oft-repeated litigation position that naming particular telecommunications companies was too sensitive:

One of the officials said the defendants in suits brought by the American Civil Liberties Union ? Verizon and AT&T ? would be the key
beneficiaries of the proposed legislation.

The ACLU and EFF are co-lead coordinating counsel in the consolidated NSA surveillance cases against Verizon and AT&T, so its not hard to figure out what the Administration official is talking about. In order to support their arguments for immunity, the Administration felt it necessary to name the particular companies that would benefit, and thereby confirm what it contends elsewhere is a secret.

So how do we explain this apparent discrepancy?

The information is only "secret" when its discussion would be helpful to the courts in reviewing the legality of the surveillance and thereby it is kept "secret" to prevent the millions of ordinary Americans who have been illegally surveilled from establishing what has been going on and stopping it.

On the other hand, when the Adminstration believes that the information helps its efforts to strong-arm Congress into more concessions and a retroactive 'get-out-of-jail-free' card for the telecommunications carriers, they freely discuss it with the press, albeit "anonymously."

Something is very wrong here. The government's state secret argument rests on its solemn assertion that there will be "grave danger to national security" if this information is revealed, even in secret to a federal judge. Now it looks as if the government doesn't really believe this, and instead is turning the state secret privilege into just another political tool to shield judicial review of its actions.