(CN) - The Supreme Court's dismissal of a challenge to the U.S. government's domestic surveillance program, months before leaked documents materialized the "speculative" harm, has no bearing on newer cases, lawyers told a federal judge.
Carolyn Jewel leads a class action challenge to the National Security Administration's Terrorist Surveillance Program, calling it an abuse of executive privilege that monitors law-abiding customers.
The class claims that the NSA's implementation of the Terrorist Surveillance Program, signed into law after the Sept. 11, 2011, terrorist attacks, violates the Constitution and the Foreign Intelligence Surveillance Act (FISA). It is represented by the Electronic Frontier Foundation, a digital privacy rights organization.
Jewel's case had been slogging along for years when in June 2013 former NSA contractor Edward Snowden leaked documents revealing that the NSA had forced Verizon to hand over "all call detail records or 'telephony metadata'" of U.S. customers placing international domestic and local calls."
The revelation was just months shy of helping sustain a similar challenge, which the U.S. Supreme Court dismissed as "speculative" with the February 2013 ruling Clapper v. Amnesty International.
In July, a month after Snowden's revelations, the judge presiding over Jewel's case barred the government from using the state secrets defense to keep a lid on surveillance information. U.S. District Judge Jeffrey White said in that ruling that the FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) pre-empts such privilege.
Citing Clapper, White then requested briefing as to whether litigating claims for untargeted surveillance would reveal whose "name was on the list of surveillance targets."
Jewel's attorneys slammed the government Monday for using this question "to assert that the state secrets privilege should govern proceedings in this litigation."
"The government's position remain simple: No innocent American whose communications or communications records have been swept up in the government's mass surveillance programs can be permitted to litigate the lawfulness and constitutionality of those unprecedented programs," the brief states.
Unlike the case at hand, Clapper involved a very different set of circumstances where the plaintiffs could not prove that the NSA had targeted their communications, Jewel's attorneys said.
Arguing otherwise puts the government in the "incoherent position of trying to simultaneously engage in a very public defense of their admitted mass collections - including releasing multiple FISC opinions, appearing at congressional hearings, releasing public reports from two presidentially appointed boards, and making public statements including presidential addresses to the nation - while at the same time arguing to this court that the question of whether these mass collections are legal cannot be litigated because the fact that 134 million AT&T telephone subscribers or 16 million AT&T Internet subscribers have their communications collected would somehow be equivalent to revealing the list of names of the targets of specific investigations," the brief states.
No reasonable AT&T customer could assume, however, that their telephone conversations were not included in the NSA's surveillance, Jewel's attorneys claim.
Echoing an earlier brief , the plaintiffs reiterated their belief that litigating their case will not harm national security.
"The government's reason for misstating Clapper is simple: because the Supreme court's concern in Clapper was limited to the risk that litigation would reveal who was on the list of surveillance targets, Clapper's dictum does not reach plaintiffs' claims, which challenge bulk, untargeted surveillance and which can be litigated without ever touching on who the government does or does not target for surveillance," the brief states. "Because the actual language of Clapper does not support the government's argument that litigating plaintiffs' claims will harm national security, it is only by distorting Clapper's dictum that the government can attempt to use it as an obstacle to plaintiffs' claims."
Electronic Frontier Foundation attorney Cindy Cohn represents the plaintiffs along with various co-counsel, including San Francisco-based attorney Richard Wiebe.
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