Government Asks Court to Toss Wiretap Claims

     SAN FRANCISCO (CN) - The U.S. government says it is immune from a class action that seeks to end the alleged "dragnet" electronic surveillance of innocent Americans.
     Two lawsuits have been filed in recent years, claiming the National Security Agency, under the current direction of Director Keith Alexander and the president of the United States, have orchestrated a program of indiscriminate surveillance of U.S. citizens.
     The first suit was brought by lead plaintiff Carolyn Jewel on behalf of current and former AT&T customers who say the company allowed, and even enabled, the NSA to eavesdrop on them. That suit is still pending, as is the most recent class-action, filed in 2007 by Virginia Schubert and three others, representing all Americans who have been illegally "spied on" by their own government.
     Former President George W. Bush authorized the Terrorist Surveillance Program (TSP) following the Sept.11 terrorist attacks. The program, Schubert alleges, compromises citizens' Fourth Amendment rights and continues today under the Obama administration.
     Like Jewel, Schubert alleges the NSA has violated the Constitution, as well as the federal Wiretap Act and the Electronic Communications Privacy Act. The Schubert plaintiffs specifically claim violation of the Fourth Amendment of the U.S. Constitution and of the Foreign Intelligence Surveillance Act (FISA). The Two suits jointly claim the federal government waives its right to sovereign immunity under those acts.
     The Government, however, claims to have invoked state secrets privileges that protects it from any litigation consequentially stemming from supposed violations of those acts.
     "The Foreign Intelligence Surveillance Act does not authorize a claim against the Government defendants sued in their official capacities, the state secrets privilege bars the litigation of plaintiffs' remaining claims and the state secrets privilege is not displaced by the FISA," said the Government in its third motion for dismissal.
     The Director of National Intelligence invoked states secrets in 2009 in reaction to both the Jewel and Schubert suits, the government seeking dismissal on the basis of possible disclosure of "highly sensitive intelligence sources and methods." The district court dismissed both cases on the ground that both sets of plaintiffs failed to sufficiently allege a personal injury.
     The Ninth Circuit, however, reversed and remanded both cases in 2011 with instructions the court revisit the government's assertion that the state secrets privilege bars litigation.
     "Accordingly, the DNI and NSA have renewed the Government's privilege assertion and again demonstrate why the disclosure of sensitive intelligence sources and methods at issue in this case and in Jewel reasonably could be expected to cause exceptionally grave harm to national security and why, as a result, both actions should be dismissed," the Government's motion stated. "The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required."
     The NSA further explained that FISA does not waive the government's privilege assertions, as Schubert alleges.
     "The FISA procedures relied upon by plaintiffs are directed at a different circumstance - the use of surveillance evidence in a proceeding against an 'aggrieved person' - and do not permit a person merely alleging he or she was subject to surveillance to seek discovery into whether surveillance has occurred," the Government said. "Before reaching the state secrets privilege question, the court should narrow the claims for which consideration of the privilege assertion would be necessary by dismissing plaintiffs' statutory FISA claim against the United States and official capacity defendants on the ground that the statutory cause of action at issue does not waive sovereign immunity."
     The Government's motion for dismissal will be heard by U.S. District Judge Jeffrey S. White in San Francisco on December 14, 2012.
     Stuart Delery, Joseph Hunt, Vincent Garvey, Antony Coppolino and Marcia Berman of the U.S. Department of Justice represent the Government.