But the government intends to assert the state secrets privilege in this case too and that could kill the suit.

NPR: NSA Operations Remain Opaque to Investigators

We are declassifying more information and embracing more oversight of our actions, and we're narrowing our use of the state secrets privilege.

WHITEHOUSE: President Obama: Our Security, Our Values

The government wants the judge to dismiss the ACLU lawsuit and cites what's known as the state secrets privilege, and there's plenty of precedent.

NPR: Invoking the State Secrets Privilege

And it was the same law firm that originally filed the case in Pennsylvania - brought it again, I believe, around 2000, and, again, lost on the State Secrets Privilege and on the finality of decision making.

NPR: Invoking the State Secrets Privilege

Ms. TASIA SCOLINOS (Spokesperson, Justice Department): And if the agency head determines that disclosure of that information would cause harm to the country, the Justice Department would review the proposed state secrets privilege claim and determine whether its assertion is appropriate in the litigation.

NPR: NSA Operations Remain Opaque to Investigators

The Bush administration has refused to share records of the program with federal courts, invoking a "state secrets" privilege.

CNN: Deal clears way for wiretap-law overhaul