Wiretapping Opponents Say U.S. at a Crossroads

(CN) - The government should not get to use limited evidentiary privilege to duck liability for the "warrantless" surveillance of U.S. citizens, a class says.

Lead named plaintiff Virginia Shubert says that the government actively violates the Fourth Amendment rights of its citizens, as well as the Foreign Intelligence Surveillance Act (FISA), under the Terrorist Surveillance Program (TSP) authorized by then President George W. Bush.

After the 9th Circuit looked at the case in December 2011, Shubert filed an amended complaint in May, and the National Security Administration countered with a third motion to dismiss last month.

Shubert warned U.S. District Judge Jeffrey White in San Francisco to affirm that the class has a valid legal claim.

"The government is engaged in a massive, criminal, domestic spying Dragnet that monitors the content of millions of telephone and Internet communications of ordinary Americans," according to the opposition brief authored by Emery Celli attorney Ilann Maazel. "Now, for the third time in this case, the government seeks to transform a limited, common law, evidentiary privilege into sweeping immunity for its own unlawful conduct. If defendants were to prevail, no court could ever stop the government from spying upon millions of innocent Americans, even if unlawful, unconstitutional and criminal."

Federal officials are overreaching in interpreting the "states secrets" privilege as able to provide immunity against litigation stemming from its actions, the brief states.

"But none of the few, narrow Supreme Court state secret cases of the past 223 years supports defendants' dangerous view," Maazel wrote. "To the contrary, the government's radical extension of the state secrets privilege defies over two centuries of American jurisprudence: law that established the constitutional right and duty of Article III court to 'say what the law is,' the right to be free from unreasonable searches and seizures, and upon 'military intrusion into civilian affairs,' and the right to judicial forum to assert constitutional rights."

Granting immunity would allegedly cause massive and unprecedented government invasions of privacy.

"The government's state secrets argument is perhaps as frightening as the dragnet itself," Maazel wrote. "Under this argument, a secret program by the military to put a camera in every American's bedroom could not be revealed, if to reveal it might harm national security. A secret program by the president to abduct and torture Americans could not be revealed, much less enjoined, if to reveal it might harm national security. This is not some parade of horribles; it is the government's position in this case. Article III courts exist to prevent such unchecked power."

Shubert says the wiretapping is not limited to suspected al-Qaida operatives or terrorist sympathizers.

The NSA continues to intercept "millions of phone calls and email of ordinary Americans, including plaintiffs, with no connection to Al Qaeda, terrorism or any foreign government," the brief states. "There is nothing speculative about the spying program. The existence of, and purported justifications for, the dragnet are public."

There are even as many as nine legal opinions in support of the program authored by the Department of Justice, Office of Legal Counsel, according to the filing.

FISA pre-empts the state-secrets privilege, which does not specifically apply to the current case anyway, the class says.

"The SAC alleges a wholesale military intelligence takeover of the phones and email," Maazel wrote. "The government's alleged conduct is far more sweeping and intrusive than that involved in any of the six Supreme Court state secrets privilege cases in the history of the country."

Of the six, the brief cites five that involved plaintiffs who "volunteered to work or contract with the United States military or intelligence." The sixth allegedly involved the potential presence of nuclear weapons on a Naval facility.

"No case involved the United States military reaching into the heartland of the country, much less as part of a dragnet representing one of the most sweeping constitutional violations in American history," Maazel wrote.

Calling the surveillance program a "crime" in violation of FISA and the Constitution, the class says that separation-of-powers principles "require[]" the court to review the government's "unconstitutional" conduct.

It also asserts that "the president cannot use the state secrets privilege to create immunity from suit for unconstitutional acts."

"The president offers no limiting principle for this breathtaking extension of the state secrets privilege," Shubert wrote, citing the 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer. "Any unconstitutional conduct, any violation of law - no matter how many people it affects, no matter how violative of fundamental rights - cannot be stopped, or even revealed, if its revelation might harm national security. Such an awesome power 'either has no beginning or it has no end. If it exists, it need submit to no legal restraint ... [it may not] plunge us straightway into dictatorship, but it is at least a step in the right direction.'"

Maazel is based in Manhattan.

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