National Security Wiretaps, or Just Snooping? | Courthouse News Service
Tuesday, November 28, 2023
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National Security Wiretaps, or Just Snooping?

(CN) - Aside from monitoring terror threats, the National Security Agency eavesdrops on the private communications of Americans for fun, a class says in the 6-year-old case against the federal wiretap program.

The allegation appears in the latest opposition brief a class filed as the government seeks dismissal or summary judgment for the third time. Lead plaintiff Virginia Shubert filed her suit originally in 2006.

Shubert's brief adopts the same arguments set forth in an unrelated case over the alleged communications dragnet. The arguments stem from a motion for summary judgment filed recently in the case Jewel v. National Security Agency. Carolyn Jewel leads a class of telephone service customers who accuse the NSA of using telecommunications companies to spy on customers under the Terrorist Surveillance Program (TSP).

Both Shubert and Jewel allege that the TSP violates the Fourth Amendment of the U.S. Constitution, as well as the Foreign Intelligence Surveillance Act (FISA).

Shubert's latest brief reaffirms the position that the government seeks to transform a limited, common law on evidentiary privilege into sweeping immunity for its "own unlawful conduct."

If it evades challenge, the government will receive unprecedented power and "no court could ever stop it" from spying on U.S. citizens, regardless if the action is illegal, unconstitutional or even criminal, Shubert says.

But Shubert also says that the NSA has a prurient basis for its surveillance.

Some NSA employees who have listened to flagged phone calls "have admitted to listening to calls simply for entertainment purposes, and sharing these calls with their colleagues," according to the brief authored by Emery Celli Brinckerhoff & Abady attorney Ilann Maazel. "As one employee explained, 'it's almost like going through and finding someone's diary."

Meanwhile, the government argues it should be trusted and that both cases should be dismissed under the state secrets privilege, alleging that the court should admit evidence of a potential breach in national security.

In its response to the Jewel, the government had said: "Renewed invocation of the state secrets privilege in this action by the director of national intelligence has undergone rigorous review within the executive branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security."

Shubert's opposition brief contends, however, that the states secrets privilege does not apply in this case because, among other things, it only applies to "military matters," not civilian communications.

"In short, this case is unprecedented, and the assertion of the state secrets privilege in this case is unprecedented," Maazel wrote. "It creates fundamental constitutional conflicts no court has ever wrestled with, among them: whether the privilege overrides (i) constitutional limitations upon the president to exert power unauthorized by Congress within the domestic sphere; (ii) the deeply rooted and ancient opposition in this country to the extension of military control over civilians; and (iii) the constitutional right and duty of Article III courts to 'say what the law is,' especially in a case involving ongoing, widespread violations of constitutional rights."

The secrecy issue is also superficial since President George W. Bush previously confirmed the existence of its wiretapping program, according to the brief.

"The president 'opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communication content," Maazel wrote. "Defendants cannot both deny the existence of a broader Dragnet, and claim that the state secrets privilege prevents them from making such a denial. Yet, that is what they attempt to do in this case."

The wiretapping program is "hardly a secret, much less a state secret," the brief also states. "Defendants publicly admitted the existence of the program, that it monitors communication content, tracks calls into the United States or out of the United States and operates without warrants. Because the very subject matter of this action is hardly secret, the state secrets privilege cannot bar this suit."

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