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Ninth Circuit deals 3rd blow to NSA spying case

People who say they were unwittingly caught up in the NSA's massive surveillance campaign in the wake of 9/11 can't pursue claims the program violated their constitutional rights.

(CN) — A 12-year legal saga brought by people who claim the government enacted a massive domestic spying dragnet culminated in yet another legal defeat Tuesday, with the Ninth Circuit issuing a terse four-page ruling affirming dismissal of their class.

A three-judge panel found a federal judge ruled correctly when he said the plaintiffs failed to provide sufficient evidence they were spied upon by the National Security Agency, a necessary step to establish standing in the case. 

“The Jewel plaintiffs failed to set forth sufficient evidence of standing for each of their claims to survive the government’s motions for summary judgment,” the panel wrote in a per curiam memorandum

The plaintiffs, which include the Electronic Frontier Foundation, lamented the ruling, saying that establishing standing is impossible because the federal government was allowed to keep secret the identities of those subjected to the spying program. 

“Today’s decision renders government mass surveillance programs essentially unreviewable by U.S. courts, since no individual will be able to prove with the certainty the Ninth Circuit required that they were particularly spied upon,” the foundation said in a blog post. "This hurdle is insurmountable, especially when such programs are shrouded in secrecy, and the procedures for confronting that secrecy are disregarded by the courts."

The U.S. Department of Justice did not respond to a request for comment. 

The case dates back to 2008, when the plaintiffs claimed the federal government conspired with telecommunications companies like AT&T to reroute internet traffic to a secret room in San Francisco where communications were reviewed and stored by the National Security Agency.

The accusations hinge on the testimony of Mark Klein, a former employee for AT&T, who worked in San Francisco and said that members of the NSA built a secure room next to AT&T’s room that hosted significant internet infrastructure and constructed devices capable of intercepting messages. 

Three NSA whistleblowers also swore under penalty of perjury that the agency had the capability to seize and store most communications that passed through its intercept centers, similar to the one Klein identified. 

The plaintiffs said then-President George W. Bush signed a secret order in October 2001, in the aftermath of 9/11, that expanded the ability of the NSA “to conduct electronic surveillance within the United States without an order from the [Foreign Intelligence Surveillance Court (FISC)].”

 In 2013, Edward Snowden leaked several top-secret documents that revealed governments around the world conspired to collect information on their own citizens and then share it with each other in a secret and extralegal manner. 

“Taken together, the revelations have brought to light a global surveillance system that cast off many of its historical restraints after the attacks of Sept. 11, 2001,” wrote Washington Post reporter Barton Gellman at the time. “Secret legal authorities empowered the NSA to sweep in the telephone, internet and location records of whole populations.”

The case was initially dismissed in 2010, with the judge finding the plaintiffs lacked standing and that the claims amounted to general grievances against the government. A Ninth Circuit panel revived the suit. 

U.S. District Court Judge Jeffrey White dismissed the case again in 2015, saying this time the lawsuit would have required the “impermissible disclosure of state secret information” by the government.

Those decisions have routinely been appealed to the Ninth Circuit, but EFF has been unable to clear the procedural hurdle of establishing standing. 

Tuesday, the foundation said the procedural roadblocks will mean the case will not be decided on the merits. 

“No court has yet ruled on the merits — whether the mass spying on the internet and phone communications of millions of Americans violates U.S. constitutional and statutory law,” the foundation said. 

The foundation also pointed to the brief it provided to the Ninth Circuit, where it contended the dismissal “hands the keys to the courthouse to the Executive, making it impossible to bring any litigation challenging the legality of such surveillance without the Executive’s permission.”

The foundation said it will review its legal options and decide whether to take the case to the U.S. Supreme Court. 

U.S. Circuit Judges M. Margaret McKeown and Ronald Gould, both Bill Clinton appointees, and U.S. Circuit Judge Carlos Bea, appointed by George W. Bush, made up the panel.

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