Feds Fight Surveillance Claims With Privilege

(CN) - Challengers to the NSA's domestic surveillance would reveal state secrets in trying to prove they were spied upon, the government said, reasserting an argument a federal judge previously rejected.

Carolyn Jewel and Virginia Shubert are the lead plaintiffs behind the federal complaints filed against the National Security Agency six years ago in San Francisco.

Both she and Jewel claim that the agency uses the Terrorist Surveillance Program, enacted after the Sept. 11, 2001, terrorist attacks, to eavesdrop on millions of phone calls in violation of the Fourth Amendment.

Shubert says NSA employees "have admitted to listening to calls simply for entertainment purposes, and sharing these calls with their colleagues."

The government argued, however, that surveillance is rigorously reviewed, and that both cases should be dismissed under the state secrets privilege.

It said the state secrets privilege requires dismissal of a case because an attempt to litigate the claims would risk disclosing state secrets and threaten national security.

The government has claimed this privilege with regard to the specific nature of an al-Qaida terrorist threat, the "dragnet" surveillance programs, information on whether plaintiffs have personally been subject to telephone surveillance, and information whether plaintiffs' personal providers have assisted the NSA.

In July, U.S. District Judge Jeffrey White rejected the government's use of the state secrets defense, ruling that the Foreign Intelligence Surveillance Act (FISA) will protect the disclosure of any information that may threaten national security.

But last week, the government filed a supplemental brief that again says plaintiffs can pursue their case only if they can show they are "aggrieved persons" and can litigate their claims without risk to national security.

And "the very questions of whether plaintiffs are 'aggrieved persons' whose communications have been subject to 'electronic surveillance' are subject to the government's state secrets and statutory privilege assertions, which encompass any and all 'information that would tend to confirm or deny whether the plaintiffs in this action have been subject to' alleged surveillance activities at issue in the complaint, and still-classified operational details about NSA intelligence activities implicated by plaintiffs' allegations," the brief states.

A declaration filed by James Clapper, director of National Intelligence, says that "the U.S. government cannot disclose classified threat information in addressing plaintiff's allegations or other issues in this case, or even in publicly supporting its assertion of privilege, because to do so would disclose to our adversaries what we know of their plans and how we may be obtaining information about them."

He asserted the state secret's privilege "to protect the classified national security information described herein" and in a classified NSA declaration not released to the public.

The Electronic Frontier Foundation (EFF), which represents Jewel, called the supplemental brief yet another attempt by the government "to block a federal court from deciding the legality of the NSA's surveillance programs at every step in this litigation, starting from when it was first filed in 2008."

On the same day as this filing, the government released some previously secret declarations submitted in these two cases, pursuant to the court's order, but the EFF said these filings "represent only a very slight shift in the government's tactics in this case."

Earlier last week, a federal judge in Washington ruled that the NSA's telephone spying program was an "indiscriminate" and "arbitration invasion" of privacy.

The judge did not enjoin the NSA from continuing to collect the metadata, however, pending a government appeal.

The Foreign Intelligence Surveillance Act allows secret courts to authorize government requests for data that might help with counterterrorism activities. The Patriot Act passed by Congress after the Sept. 11, 2001, terrorist attacks broadened the government's ability to collect information about Americans' phone activity.

It was only after former government contractor Edward Snowden leaked the information this past June that the federal government has admitted to its data-collection practices.

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