Partial Judgment Sought in Federal Wiretap Case

     SAN FRANCISCO (CN) – Armed with declarations from three former National Security Agency analysts, a class of AT&T customers moved for partial summary judgment against the federal government and its anti-terrorism wiretapping program.
     The three analysts are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. Lawyers for the class say they can confirm the declaration of Mark Klein, a former AT&T technician who came forward with evidence that it collaborated with the NSA to build a secret room at its Folsom Street facility in San Francisco where the government could intercept customers’ communications.
     In their motion filed Monday, the class asked the court to reject the government’s claim that its warrantless, surreptitious surveillance of American citizens is protected by the state secrets privilege.
     “The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret,” said Lee Tien, an attorney with Electronic Frontier Foundation in a statement. “Yet the government keeps making the same ‘state secrets’ claims again and again. It’s time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance.”
     Though the case was dismissed by former Chief U.S. District Judge Vaughn Walker in 2010, it was recently revived by a three-judge panel of the 9th Circuit, finding lead plaintiff Carolyn Jewel and other class customers had provided detailed accounts of their Internet communications and phone calls being intercepted by the NSA.
     In Monday’s motion, class lawyers said the state secrets privilege is preempted by §1806(f) of the United States government code, enacted in 1978 as part of the Foreign Intelligence Surveillance Act.
     “Section 1806(f) leaves no room for the state secrets privilege to operate,” the class says. “Applying the state secrets privilege in an electronic surveillance lawsuit would mean nullifying section 1806(f) and preventing courts from adjudicating the legality of electronic surveillance, contrary to Congress’ intent.”
     The class also countered the NSA’s assertion that Section 1806(f) only applies to its claims if it can prove Jewel is an “aggrieved person” under FISA. “This is not the law. The government makes up its position out of whole cloth. Nothing in FISA requires plaintiffs to prove at the outset that they are aggrieved persons before their lawsuit, and discovery, can go forward,” the class says. “In addition, plaintiffs have not simply alleged generally that their communications and communications records have been subjected to electronic surveillance. They have presented detailed and extensive allegations of the manner in which the surveillance of their communications and communications records has been conducted.”
     The motion is set to be heard in the Northern District on Nov. 2, 2012.

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