NSA surveillance suit is down and nearly out. High court is last hope

RICHMOND, Va. (CN) — Not ready to throw in the towel, a consortium challenging the National Security Agency's Upstream surveillance program voiced derision at the explanation that the Fourth Circuit gave for throwing out their suit Wednesday.

“We are extremely disappointed that the court wrongly credited the government’s sweeping secrecy claims and dismissed our client’s case," Patrick Toomey, senior staff attorney with the ACLU’s National Security Project, said in a statement.

“Every day, the NSA is siphoning Americans’ communications off the internet backbone and into its spying machines, violating privacy and chilling free expression," he added. “Congress has made clear that the courts can and should decide whether this warrantless digital dragnet complies with the Constitution.”

The ACLU brought the lawsuit here in 2015, representing a host of civil liberties groups helmed by the Wikimedia Foundation, the nonprofit that operates Wikipedia and 11 other free-knowledge projects.

Though the suit came two years after former NSA contractor Edward Snowden famously leaked documents exposing Upstream and other U.S. government surveillance programs, the Office of the Director of National Intelligence argued to the court that Wikimedia was seeking disclosures that “reasonably could be expected to cause serious damage, and in many cases exceptionally grave damage, to the national security of the United States.”

Twice, a federal judge in Baltimore has sided with the government. This past March, in the first go-around, the Fourth Circuit revived the case. On Wednesday, however, it affirmed dismissal, saying the state secrets privilege controls.

“Circumstances in which any valid defense would require resort to privileged materials are those in which ‘state secrets are so central to [the] proceeding that it cannot be litigated without threatening their disclosure,’" U.S. Circuit Judge Albert Diaz, an Obama appointee, wrote for a somewhat divided three-person panel.

“There’s simply no conceivable defense to this assertion that wouldn’t also reveal the very information that the government is trying to protect: how Upstream surveillance works and where it’s conducted," Diaz added.

The Clinton-appointed U.S. Circuit Judge Diana Jane Gribbon Motz scoffed at the state secrets argument in a partial dissent, saying the NSA's defense consists of “only totally inadequate hypotheticals ... based on nothing more than boilerplate claims of privilege.”

“When the Government makes an inadequate showing, that is precisely when we should not 'lightly accept[]' its claims,” she wrote, quoting United States v. Reynolds, a 1953 decision in which the U.S. Supreme Court allowed the Air Force to withhold an accident investigation report based on a formal claim of privilege. 

Wikimedia held up the same evidence to support its standing to sue and the merits of its unlawful surveillance claims, but Diaz said such an undertaking would essentially lead to an entire trial conducted in camera.

“We think it unlikely that Congress stashed away an expansive right for litigants within a statute directed entirely toward the government’s use of information,” the ruling concludes.

The NSA carries out its Upstream surveillance program under the authority of section 702 of the Foreign Intelligence Surveillance Act. With an eye toward catching terrorists and spies, the agency monitors Americans’ international communications, including emails and search terms, by tapping into the vast network of cables, switches and routers in the U.S. that represent the physical backbone of the domestic internet.

“For years, the NSA has vacuumed up Americans’ international communications under Upstream surveillance, and to date, not a single challenge to that surveillance has been allowed to go forward,” Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, said in a statement Wednesday. “The Supreme Court should make clear that NSA surveillance is not beyond the reach of our public courts."

Judge Motz spoke to this future as well.

“For reasons unclear to me, both of my colleagues rush to decide a novel and difficult question that the Supreme Court will resolve within the year,” she wrote. 

The panel was rounded out by U.S. Circuit Judge Allison Rushing, a Trump appointee who kicked Wikimedia while it was down in a separate concurring opinion. 

Though a declassified 2011 opinion from the Foreign Intelligence Surveillance Court describes the NSA's collection of domestic communications, Rushing said nothing in the opinion suggests that "the NSA was collecting all such communications." (Emphasis in original.)

“Wikimedia stretches the bounds of inference too far when it reads into the FISC’s statement an off-topic proposition not necessarily implied by that statement, and one that would, apparently by accident, reveal state secrets to boot,” she wrote. 

"Even drawing 'all justifiable inferences' in Wikimedia’s favor, its out-of-context interpretation of one statement from the 2011 FISC opinion could not support a jury finding in its favor that the NSA actually copies and reviews all communications on a monitored link," Rushing continued.

Representatives for the NSA declined to comment.

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