Yesterday, 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.
Once 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."