NSA Wiretap Campaign Cannot Hide in Dark

     (CN) – Two challenges to the NSA’s wiretapping program will proceed after a federal judge ruled that the government cannot invoke the state secrets defense.
     Carolyn Jewel and Virginia Shubert are the lead plaintiffs behind the federal complaints filed against the National Security Agency (NSA) six years ago in San Francisco.
     They claim that the agency eavesdrops on millions of phone customers’ calls under the.
     Shubert says NSA employees “have admitted to listening to calls simply for entertainment purposes, and sharing these calls with their colleagues.”
     Both she and Jewel claim that the agency uses the Terrorist Surveillance Program, enacted after the Sept. 11, 2001, terrorist attacks, to eavesdrop on millions of phone calls in violation of the Fourth Amendment.
     The government argued that surveillance is rigorously reviewed, and both cases should be dismissed under the state secrets privilege.
     U.S. District Court Judge Jeffrey White explained Monday that this common-law privilege “permits the government to bar the disclosure of information if ‘there is a reasonable danger’ that disclosure will ‘expose military matters which, in the interest of national security, should not be divulged.'”
     Though “there would be significant evidence that would be properly excluded should the case proceed,” White said the state secrets defense will not help the government here.
     The Foreign Intelligence Surveillance Act (FISA) pre-empts the state secrets privilege, and grants individual federal defendants sovereign immunity on certain claims when working in their official capacity, according to the ruling.
     “It is clear Congress intended for FISA to displace federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview,” White wrote.
     He later added: “The court finds that the Patriot Act must still be read to restrict the authority to sue the United States to suits for damages for the three specific statutory provisions listed in § 2712. Significantly, any ambiguities must be read in favor of the United States’ immunity from suit.”
     There is no dispute that the NSA has the authority to conduct electronic surveillance. Rather, “plaintiffs contend that defendants conducted electronic surveillance improperly, without following the proper procedures, and in violation of FISA, the Wiretap Act and the SCA,” White explained. “In essence, plaintiffs contend that the individual defendants erred in their exercise of their authority to conduct electronic surveillance. Such a claim does not fit within the narrow exception to sovereign immunity under the ultra vires doctrine.”
     Based on this ruling, the court dismissed counts 5-16 of the Jewel complaint, and 1-3 of the Shubert complaint, which were based on violations of FISA. Only plaintiffs’ constitutional claims remain.
     White reserved ruling on the plaintiffs’ other claims, asking for additional briefing from the parties on the “the scope of FISA preemption on the plaintiffs’ constitutional claims, specifically, whether the scope of the preemption only provides a procedural mechanism for the review of submitted evidentiary materials or whether the scope of FISA preemption is broader to foreclose altogether the substantive constitutional claims.”
     Cindy Cohn, the legal director of the Electronic Frontier Foundation, which represents Jewel, claimed the ruling was a victory for plaintiffs.
     “The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government’s invocation of the state secrets privilege to have the case dismissed,” Cohn wrote. “Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the director of National Intelligence. Today’s decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans’ constitutional rights.”

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