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US Government's State Secrets Claim to Justify NSA Warrantless Wiretapping

Written by Cindy Cohn

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EFF Opposes US Government's State Secrets Claim (Again) in Jewel v. NSA, the Warrantless Wiretapping Case

On Oct 9, EFF filed its latest brief in the Jewel v. NSA case, aiming to stop the government from engaging in mass warrantless collection of emails, phone calls, and customer records of ordinary Americans. The matter is set for hearing on December 14, 2012 in federal court in San Francisco, on the question of whether these Americans will get their day in court.

NSA_eagleOnce again, the government is arguing that the courts cannot consider whether the government is breaking the law and violating the Constitution, relying on the state secrets doctrine. The government asserts that, even if no further information is revealed in the litigation, a decision itself is too dangerous. But contrary to the government's claims, as EFF's brief explains, Congress has created multiple legal claims that can be raised against illegal government surveillance, even in the context of national security. Moreover, the Foreign Intelligence Surveilance Act (FISA), section 1806(f) overrides the state secret privilege and provides that the court must decide whether government surveillance is "lawfully authorized and conducted."

As the brief explains, if the court were to allow the state secrets claim to prevail, the government will have essentially walled off large portions of illegal government conduct from judicial scrutiny:

The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty. Its goal is to convince this court to close its eyes to a program that impacts every American who uses a phone, email or the Internet.

The government's argument relies on the notion that the warrantless surveillance program — which has been investigated by virtually every major news outlet and extensively discussed in public hearings — somehow remains a secret. To show the court otherwise, EFF also compiled the voluminous evidence demonstrating the breadth of public information about the NSA's mass domestic surveillance program for the court, including:

Sadly, yesterday the Supreme Court also decided not to review EFF's case against AT&T, Hepting v. AT&T, for the same spying program. The Supreme Court let stand a 9th Circuit decision that upheld the so-called "retroactive immunity" for the telecommunications companies, which passed Congress in 2008, two years after EFF filed suit against the telecom companies. We're disappointed in the Supreme Court's decision, since it lets the telecommunications companies are off the hook for betraying their customers' trust and violating the law by handing their communications and communications records to the NSA without a warrant.

But the fight to stop the illegal spying on the American people continues.

Cindy_CohnCindy Cohn is the Legal Director for the Electronic Frontier Foundation as well as its General Counsel. She is responsible for overseeing the EFF's overall legal strategy and supervising EFF's eleven staff attorneys.

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