SAN FRANCISCO (CN) – The National Security Agency and President Obama seek dismissal of a class action that accuses the NSA of illegally spying on citizens’ phone calls. The class claims that the George W. Bush administration colluded with major telecommunications companies, authorizing “a range of surveillance activities inside of the United States without statutory authorization or court approval, including electronic surveillance of Americans’ telephone and Internet communications.”
U.S. District Judge Vaughn Walker heard arguments from both sides on the government’s motion to dismiss Wednesday.
Anthony Coppolino, special litigation counsel for the government, contended that though the class must obtain evidence of eavesdropping to establish standing, they “risk exceptional harm to national security” by asking that the government turn over records of such communications.
“What they seek they believe is not privileged,” said Coppolino, who maintained that the requested information is protected by the state secrets privilege.
Judge Walker asked plaintiffs’ counsel Kevin Bankston why he believed the state secrets privilege did not apply to this case. Bankston said it is preempted by the Foreign Intelligence Surveillance Act. FISA requires the government to reveal where and how any communications were intercepted and requires disclosure of government intelligence sources and methods.
Coppolino said, “FISA does not preempt the state secrets privilege,” but Bankston disagreed, saying the records must be handed over “for the purpose of discovering the legality of the surveillance.”
Though Coppolino said that since 2006 the government “has not changed its view that (surveillance) activities need to be protected,” Bankston noted that President Obama has said he “does not intend to use the state secrets privilege to cover up illegal activity.”
This is not the first time that Judge Walker has had to rule on the legality of government electronic surveillance. In June 2009, Walker dismissed dozens of wiretap suits, citing the intent of Congress and FISA as the primary influences in his decision.
A ruling on this hearing is expected in the coming weeks.