SAN FRANCISCO (CN) – A federal judge signaled Friday that he may end more than a decade of litigation over the government’s mass surveillance program because advancing the lawsuit could threaten national security.
“The court is concerned that it has reached the point that further litigation poses a not insignificant risk of disclosure of national security information and resulting grave harm to national security,” U.S. District Judge Jeffry White said during a hearing Friday.
A Justice Department lawyer implored the judge not to decide whether five plaintiffs have standing to sue the government. A ruling on that issue would expose whether the National Security Agency collected the plaintiffs’ internet and phone data, a disclosure the government says will imperil state secrets.
“It would result in a classified fact coming out in the public record,” Justice Department lawyer Rodney Patton told the judge.
But the plaintiffs, represented by privacy rights advocacy group the Electronic Frontier Foundation, scoffed at that argument, noting that leaked and inadvertently disclosed files had already made details about the spying program public.
Those files include a 2003 document from a former AT&T technician detailing how the telecom giant routed internet traffic to a secret room in San Francisco controlled by the NSA. The plaintiffs also cite a 2009 NSA inspector general’s report on another surveillance program and a letter the government accidentally disclosed to the New York Times in 2015 that identifies AT&T, Verizon and Sprint as companies that gave the NSA access to customers’ phone records.
The Department of Justice disputes the authenticity of those files, even though a New York Times lawyer and former NSA contractor Edward Snowden submitted declarations supporting their legitimacy.
“It’s out there and we’re entitled to rely on it,” Electronic Frontier Foundation attorney Richard Wiebe told the judge.
The Justice Department also questioned whether Snowden could actually testify at trial on the authenticity of a 2009 NSA inspector general’s report. Wiebe suggested that if the case goes to trial, Snowden could testify remotely from Russia, where he currently lives in exile as an American fugitive charged with violating the 1917 Espionage Act for disclosing files on NSA spying programs.
Wiebe told Judge White that if the case goes to trial, much of the proceedings would occur “out of the public eye” in a sealed-off courtroom, and plaintiffs’ lawyers would be barred from participating unless they obtain permission to review classified information.
As part of the case, Judge White ordered the government to turn over classified information that only he can review. Wiebe said he believes those top secret files will prove the government collected his clients’ personal data, but he also believes the public evidence is sufficient to establish standing.
Regarding the government’s right to halt litigation by invoking state secrets privilege, the plaintiffs argued a recent Ninth Circuit ruling forbids dismissing the case for that reason.
In Fazaga v. FBI, the Ninth Circuit reversed the dismissal of a lawsuit over mosque surveillance, finding the court should have reviewed classified evidence behind closed doors instead of dismissing constitutional claims based on the government’s assertion of state secrets privilege.
Despite that controlling opinion, the Justice Department maintains that classified evidence still can’t be used to establish standing. Citing laws that allow courts to look at classified information in secret, Patton argued the special procedure only applies to “aggrieved persons,” meaning only plaintiffs that already established standing can benefit from it.
Judge White didn’t’ seem to buy that argument.
“If the court’s reviewing the documents for one purpose – lawfulness – isn’t it assumed that the court needs to determine whether the plaintiffs are aggrieved?” White asked.
Before resting his case, Patton again urged the judge not to issue a ruling on standing, arguing such a disclosure could expose critical details about the nation’s intelligence gathering operations.
But the plaintiffs countered that a simple “yes” or “no” answer would not expose anything new about NSA surveillance programs that have already been widely disclosed and debated in public.
“We don’t think that simple ‘yea’ or ‘nay’ will cause harm,” Weibe told the judge.
Judge White said he plans to issue two opinions on the government’s motion for summary judgment: one public document and a separate sealed ruling that will reference secret evidence submitted by the government.