Abuse of Executive Power Decried in Wiretap Case

(CN) - Americans opposed to the U.S. government's wiretap program called on the judiciary to reign in "unprecedented" assertions of power in the executive branch.

Carolyn Jewel leads a class of phone service customers in a San Francisco federal action aimed at the National Security Agency liable for coordinating with telecommunications companies to spying on their customers through the Terrorist Surveillance Program.

President George W. Bush initiated the program after the Sept. 11 terrorist attacks, leading critics to slam it as a "dragnet" program of indiscriminate electronic spying on unsuspecting Americans.

Dozens of similar lawsuits, some against other telecommunication companies such as Verizon, were consolidated and awaiting action in San Francisco when Congress passed an amendment in 2008 to the Foreign Intelligence Surveillance Act (FISA). The amendment provides telecommunications companies immunity to civil actions for "providing assistance to an element of the intelligence community."

In 2011, the 9th Circuit unanimously affirmed dismissal of those cases, but granted two of the 35 plaintiffs leave to advance their claims against the government, finding that FISA's immunity clause did not apply.

The other 33 plaintiffs sought a writ of certiorari, but the U.S. Supreme Court shot them down Wednesday.

That same day, Jewel, whose claims were revived in a separate 2011 decision, filed new arguments with the court. The combined reply supports her motion for partial summary judgment and opposes the government's cross-motion for dismissal.

More specifically, it shows no mercy in openly accusing the executive branch of overstepping its constitutional powers.

"The government's attempt to secure threshold dismissal of this case is part of a broader pattern," according to filing authored by attorney Richard Wiebe. "Since September 11 and now, through two administrations, the executive has engaged in unprecedented assertions of power without regard to the constitutional and statutory limits of its authority. It has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress."

To defend its actions, the government has allegedly taken one recognizable privilege out of context.

"The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty," Wiebe wrote. "Its goal is to convince this court to close its eyes to a program that impacts every American who uses a phone, email or the Internet. The judiciary must recognize the dangers of allowing the executive to distort narrow exceptions like the state secrets privilege into broad unfettered power to 'turn the Constitution on or off at will.' Even in the case involving war powers, the Supreme Court has confirmed that the 'war power does not remove constitutional limitations safeguarding essential liberties.'"

The reply notes that section 1806(f) of FISA "displaces the state secrets privilege," and that the plain language and legislative history of FISA demonstrates that fact.

Between 1945 and 1975, the NSA "illegally" intercepted and reviewed more than 150,000 telegrams per month for cases that mostly went unprosecuted, the filing states.

"Against this unseemly backdrop, FISA was enacted to protect ordinary Americans from untargeted dragnet surveillance under the banner of 'national security,'" Wiebe wrote. "The civil remedies for illegal surveillance are therefore an essential part of FISA's scheme, and 1806(f) is an essential part of making the civil remedies work. The government nevertheless asserts that section 1806(f) displaces the states secrets privilege only where surveillance evidence is used by the government against an aggrieved person. That contention is contradicted both by the statutory text and the legislative history."

Even if those facts were not true, the plaintiffs insist that the state-secrets privilege cannot support dismissal or summary judgment.

"Like other privileges, the state secrets privilege protects from disclosure evidence possessed by the privilege holder - it does not bar litigation of the claim to which the evidence relates or the use of other evidence outside the control of the privilege holder," Wiebe wrote. "It is evidentiary rule: The privilege information is excluded and the trial goes on without it."

The filing also casts the government's privilege assertion as "overbroad and unsupported by an adequate showing of harm." Immunity does not "bar plaintiffs' equitable claims," the attorney wrote.

U.S. District Judge Jeffery White will consider the motion to dismiss and motion for summary judgment on Nov. 2.

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