Privilege Dooms Post-9/11 Wiretap Case, NSA Says

     (CN) – The National Security Agency says it has immunity from a class of AT&T customers who claim that wiretapping violates their rights.
     Carolyn Jewel, the lead plaintiff in the San Francisco federal action, says that the U.S. government conducted illegal, “indiscriminate” telephone surveillance of American citizens following the Sept. 11, 2001, terrorist attacks. The program, approved by then President George W. Bush, was later referred to as the Terrorist Surveillance Program, or TSP.
     Jewel’s lawsuit is one of many that were filed against telecommunications carriers when it became public in 2005 that AT&T had 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 July 2008, Congress enacted the Foreign Intelligence Surveillance Act Amendments Act, which cleared carriers of any liability stemming from their cooperation with the government in their wiretapping program.
     Jewel claims that the NSA’s actions violated the Constitution, as well as the federal Wiretap Act and the Electronic Communications Privacy Act, and that a waiver of sovereign immunity applies.
     In 2010, a federal judge dismissed Jewel’s case for failure to allege a personal injury. The 9th Circuit reversed a year later, however, and instructed the court to consider whether the government’s state secrets privilege bars the litigation.
     Jewel filed for partial summary judgment in July, relying on declarations from three former NSA analysts and a former AT&T analyst about the surveillance.
     The government moved to dismiss Wednesday, pointing to declarations from Director of National Intelligence (DNI) James Clapper and the NSA’s Frances Fleisch about the state secrets privilege.
     “The government has amply demonstrated in the DNI and NSA public and classified declarations that disclosure of the privileged information reasonably could be expected to cause exceptionally grave damage to national security,” a 48-page memorandum states. “The disclosure of information concerning whether plaintiffs have been subject to alleged NSA intelligence activity would necessarily reveal NSA intelligence sources and methods, including whether certain intelligence collection activities existed and the nature of any such activity. The disclosure of whether specific individuals were targets of alleged NSA activities would also reveal who is subject to investigative interest – helping that person to evade surveillance – or who is not – thereby revealing the scope of intelligence activities as well as the existence of secure channels for communication.”
     Clapper has also disputed the “indiscriminate” surveillance allegation.
     “The DNI explains that, as the government has previously indicated, the NSA’s collection of content of communications under the now inoperative TSP was directed at international communications in which a participant is reasonably believed to be associated with al Qaeda or an affiliate terrorist organization, and thus plaintiffs’ allegation that the NSA has indiscriminately collected the content of millions of communications sent or received by people inside the United States after 9/11 under the TSP is false,” according to the government’s filing.
     U.S. District Judge Jeffery White will consider the motion to dismiss and motion for summary judgment on Nov. 2.
     Acting Assistant Attorney General Stuart Delery represents the NSA along with Justice Department attorneys Anthony Coppolino and Marcia Berman and others.

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