Overruling the Obama Administration a Federal Judge Allows Suit Against NSA Spying to Go Forward

EyeofSauronShirtigoA federal judge in San Francisco is permitting the case Jewel v. NSA filed on behalf of AT&T customers by the Electronic Frontier Foundation to go forward despite the objections of that the lawsuit runs afoul of the "state secrets privilege" according to Obama administration lawyers. As CNET reports:

A federal judge ruled today that a long-standing lawsuit alleging illegal surveillance by the National Security Agency may continue despite the Obama administration's objections.

U.S. District Judge Jeffrey White in San Francisco rejected the administration's claim that the lawsuit could not proceed because it might reveal "state secrets" and endanger national security.

The Electronic Frontier Foundation filed the lawsuit, called Jewel v. NSA, in 2008 to challenge a NSA's warrantless surveillance program that vacuumed up Americans' confidential electronic communications. It alleges (PDF) that the NSA "intentionally and willfully caused" or directed AT&T to permit access to its fiber links in violation of federal wiretapping laws and the U.S. Constitution.

"One small step for the case, one giant leap for the Constitutional rights of mankind," EFF attorney Kurt Opsahl wrote on Twitter this afternoon.

In its lawsuit the EFF asserts:

Filed in 2008, Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. It also includes declarations from three NSA whistleblowers along with a mountain of other evidence

Unfortunately, judicial precedents have allowed the government to enlarge the concept of "state secrets" such that almost any government activity can be declared a state secret. As CNET notes:

The state secrets privilege, outlined by the Supreme Court in a 1953 case, originally permitted the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets. It has since turned into a potent weapon the Bush and Obama administrations have used to target any lawsuits alleging illegal NSA surveillance.

In 1998, the 9th Circuit Court of Appeals considered the state secret privilege in a case where former workers at the Air Force's classified Groom Lake, Nev., facility allegedly made hazardous waste violations. When requested by the workers' lawyers to turn over information, the Air Force refused.

The 9th Circuit upheld a summary judgment on behalf of the Air Force, saying that once the state secrets "privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute" and the case will generally be dismissed.

If you'd like to be especially depressed about the continuing rise of the national security surveillance state, see my Reason colleague J.D. Tuccille's excellent article, "The Surveillance State Isn't Coming - It's Already Here."

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  • anon||

    Expect the judge to soon die in a fiery "car accident."

  • sarcasmic||

    Love the pic and alt-text. That's a winner for sure.

  • ||

    That picture is great. I want a poster version of it.

  • Cliché Bandit||

    Second. but with a bit better artistry.

  • ||

    Mt. Doom is on Liberty Island? Remo Williams must be warned!

  • Cliché Bandit||

    My understanding is that within the NPS a ranger being sent to Liberty Island is like being sent to Alaska fro the DoD or Siberia for Russians.

  • Agammamon||

    Nah, its a really important job - under the statue of liberty is where they keep all those guns that *disappeared* off the official inventory lists. Just in case New York is invaded by aliens - they're our first line of defense.


    We are so fucked.

  • Killazontherun||

    UNATCO HQ. Being tossed in among all those collected, no wonder Gunther can't find his skullgun.

  • Lord Humungus||

    Daryl Hannah could always show up - you never know.

  • Cliché Bandit||

    way to look on the bright side metal face.

  • Pro Libertate||

    Chuin is already on it.

  • ||

    ProL, you comment like pregnant yak.

  • itsnotmeitsyou||

    You type like a baboon with two clubbed hands.

  • Pro Libertate||

    You drive like a monkey in heat.

  • ||

    You talk gayer than a sackful of chinamen.

  • Scruffy Nerfherder||

    LOL WUT?

  • Pro Libertate||

    It's from Destroyer #671.

  • ||

    What, you didn't get the shirt?

  • SeaCaptain(Yokeltarian)||

    Fuck you, thats why?

  • Emmerson Biggins||

    I'm wearing that t-shirt right now. Sweet.

  • itsnotmeitsyou||

    I was wearing mine out the other day. I got confused looks, sneers of derision, or high fives. Guess I know who I'll be seeing in the re-education camps.

  • Brett L||

    All of the above. That's why its such a great shirt.

  • ||

    Well done Ron.

  • np||

    Today's ruling (PDF) is anything but a final decision. White asked for "further briefing" from both sides on the constitutional arguments. And EFF will still need to demonstrate it can litigate without "impermissible damage to ongoing national security efforts," White said.


    It tooks 5 years to get here, maybe it'll take another 5 years to determine that.

  • ||

    *Miracle happens and SCOTUS declares domestic surveillance unconstitutional.*

    Barack Obama: "The courts have announced their ruling. Now let them enforce it."

    Either way, we're probably fucked.

  • Sevo||

    "Barack Obama: "The courts have announced their ruling. Now let them enforce it.""

    Exactly:
    'I don't like part of this law so it doesn't apply to some of my friends. The royal scepter, please!'

  • Libertymike||

    The royal scepter is no match for the staff of liberty.

  • pan fried wylie||

    The dps is the same, but the staff of liberty's attack speed is 4.2sec compared to the royal scepter's 1.6sec.

  • Libertymike||

    What if my 8 year old nephew asks me how can the dps damage be the same with such a discrepancy in attack speed?

  • Agammamon||

    One does a more damage but attacks slower than the other. Good against single high armor opponents but not against swarms of low armor mobs.

  • pan fried wylie||

    Tell your nephew that he's a noob, give him a wedgie, then run away laughing maniacally.

  • Pro Libertate||

    No, I don't think he could pull that off. We need a good constitutional crisis, so it would be great if he tried. At least, I hope it would be.

  • ||

    My favorite fact about the state secrets privilege is that the 1953 case for which it was invented didn't turn out to involve any actual state secrets, years later when it was finally declassified. Just facts that might have embarrassed government officials.

    In fact, I don't know of any cases it's been invoked for (that have since been declassified) that *have* turned out to actually involve state secrets as opposed to state privilege-of-not-being-embarrassed.

    It confuses and alarms me that judges still take it seriously. Though this judge seems to have actually inquired about the secrets involved, instead of taking the administration at its word. A positive development.

  • Agammamon||

    They take it so seriously that when the case was revisited in 2003, the court found no fraud in the government's original claim - because the documents, read in their historical context, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29.

  • sarcasmic||

    Embarrassing facts about public officials are a matter of national security. Public officials must be trusted. That trust might be compromised if embarrassing facts about them were to emerge. It's the same principle at work when police are never found to be at fault when they murder citizens. Public trust would be undermined if they were found to be at fault. Can't have that.

  • tarran||

    Yep

    A far better thing would be a system where if the govt invokes the states secrets privilege the court treats it as if the evidence were inadvertantly destroyed and react as it would for any instance where a party destroyed evidence.

    Hell the courts already have a system for litigation involving trade secrets. It's quite doable without giving the govt a keep out of jail for free card.

  • Libertymike||

    How about judges actually doing their job?

    There is no textual support for the state secrets doctrine to be found in either the Declaration of Independence or the federal constitution.

    Further, there is no grant of power given to the judicial branch to either conceive of, or buy, the state secrets doctrine.

    Moreover, its the survival of the values undergirding the secession from the british empire which must be protected; not the state.

  • tarran||

    I completely agree. There being no statute defining it, the courts had no business manufacturing it; it's a travesty of common law for a judge to decree unilaterally that a party can hide evidence.

  • sarcasmic||

    Oh, how naive. The job of judges is to protect the political class from uppity citizens who can afford expensive attorneys. They throw us a bone once in a while, but their core function is to come up with justifications for things that cannot be justified.

  • Agammamon||

    I'm thinking of a system where, when the government cries 'state secret', the courts says 'sure, but that just means we'll exclude the evidence you are trying to protect. What, you don't have any evidence *except* the top secret stuff - well I guess you'll just have to decide what's more important - national security or putting this guy in jail.

  • ||

    As I understand it, that *is* how the state secrets privilege works. Except that it's not invoked in criminal cases, it's invoked in lawsuits against the government that are relying on the normal discovery process to force the government to produce evidence of its own wrongdoing or error. The court says, "sorry, plaintiff, it sure looks like the government shafted you good, but I can't force them to turn over any evidence of it because it's a state secret, so you're out of luck."

  • Tim||

    THE TERRORISTS HAVE WON! AIEEEEEEEEEEEEEEEEEEEEEEEE!

  • Fist of Etiquette||

    More like Judge Traitor.

  • Cliché Bandit||

    AAAANNND We're OFF! It's skinny white guy ahead by a nose...

    Snowden to Venezuela.

  • ||

    He better bring some Russian toilet paper with him.

  • Cliché Bandit||

    The flight plan will be interesting. It is going to be hard to avoid all of Europe and North America when flying from Moscow unless he flies to Vladivostok first then to South America, over Nicaragua and then to Venezuela.

  • Cliché Bandit||

    and being over that much remote ocean where the Pacific Fleet likes to bob about is a recipe for "we don't know what happened, the plane just disappeared off the radar" type incident.

  • ||

    If he's really afraid of the US government diverting his plane over international airspace he could fly to Vladivostock and hop on a freighter to South America.

    The US Navy isn't going to randomly stop ships on the high sea to search for one person.

  • Pro Libertate||

    The law on freedom of the seas is a lot more robust than for flying, I bet. So he should take a ship.

  • Agammamon||

    The law of the freedom of the seas is what allows American ships to stop random vessels in the Gulf all the time.

    The technical recourse to having your ships boarded is to shoot at the boarders but no-one seems to want to start a shooting war with us, so . . .

  • ||

    I can't believe that even Obama would be so stupid to cause an international incident by brazenly boarding a ship under the flag of another sovereign nation.

    A Panamanian freighter is not the same thing as an Iranian fishing boat.

  • tarran||

    Who is going to stop him?

  • Agammamon||

    We do it all the time. Coast Guard patrolling for drug runners and both the US Navy and Coast Guard patrolling the Gulf looking for ships trying to break one of our embargoes.

  • Agammamon||

    We board freighters in the GUlf. Damn near every US Navy ship has a small group of people picked out of the crew and given training for boarding and seizure.

  • Agammamon||

    Not even peaceful, 'let me see your menifests to ensure your not doing something we don't like' boardings.

    I mean no-shit, heave to and prepare to be boarded or shot at boarding. Coupled with a team that goes onboard, armed, and 'secure' (read gathers into one place, locks up, and/or handcuffs them, under armed guard) while the rifle through the ship's manifest and physically search the vessel.

  • ||

    I don't dispute that the Navy and Coast Guard do it to catch drug runners and other smugglers of contraband, but we are talking about a high-profile political case.

    It would definitely create an international backlash if they violated another nation's sovereignty to catch one man who committed no crime other than embarrassing a bully. It would definitely have repercussions.

  • Agammamon||

    Hasn't so far.

  • itsnotmeitsyou||

    Are we forgetting that a head of state's airplane was diverted trying to catch Snowden?? Does anyone here actually think that a civilian aircraft or ship wouldn't be diverted, searched, shot down for non-compliance?

  • BakedPenguin||

    I thought of this, but does Russia want him on their "soil," even for a moment?

  • Pro Libertate||

    Okay, maybe not a ship then. Unless he goes in disguise. I suggest something open, like a guy impersonating him.

  • Mongo||

    A design fellow who used to contract with the government at the Walker Art Center has apparently designed a font incapable of being surveilled by the NSA:

    http://blogs.citypages.com/dre.....llance.php

  • Agammamon||

    Unfortunately that only works for *optical* scanning. Electronic scanning is still going to see the code for each letter and will know what its supposed to be.

  • Bam!||

    It wouldn't even work for optical scanning. You can give OCR algorithms the raw font file, have it learn that specific font, and then it'll be able to read it as good as a human.

  • Killazontherun||

    Hxxexxxxntxxvxzmsxxntq ldrrzfdxxsnxxx ad tnrbzmmzakd xntxxcn xxsghrx

  • Killazontherun||

    That is what you do if you want to make a document unscannable. The 'x's have three tense meanings based on circumstance. If the logarithm removes the x's to scan it, the meaning is destroyed as well in the process.

  • Mongo||

    I knew HampersandR peeps would be smarter than some artfag....

  • Killazontherun||

    I'd go a few steps further. If I had, say, a twenty thousand word document to hide, after I got the pattern of code and scan noise down in an unbroken sequence (I also broke up the sequence above so the squirrels would not have fits, and left a word wide open so you could break it), I'd take a four hundred thousand word novel, remove all the words but leave their length and pattern in tack, embed the code and scan noise inside of it, and use the novel as a common key for my compatriots to skin away the first layer of noise.

    When I was trying to convince some of my friends at the mother company to release Gears of War 2 for the PC (got shot down), these are the techniques I developed to beef up the size of data files so any piracy would require massive downloads; whereas legit Steam copies could be streamed skinny using the common key.

  • Killazontherun||

    You can break it by hand, of course, as I left the coding simple the key wide open, but it would still give a scan the fits.

  • The Late P Brooks||

    It's more likely than not wishful thinking on my part, but it almost seems as if some of the Total Security State may be crumbling.

    Time for Peter King to hold a press conference and disclose the terrorist shootdown of that Asiana plane.

  • Pro Libertate||

    It's at least an opportunity.

  • Libertymike||

    Speaking of Peter King, what about his connections to, and defense of, the IRA?

    Go back and listen to what he said in the mid 1980s about the cause of Irish republicanism.

  • Agammamon||

    But its ok - the IRA were never 'terrorists' they were 'freedom fighters'.

  • Pro Libertate||

    The image reminds me of my favorite not-asked debate questions: "Tolkien's One Ring--do you wield it or toss it into a volcano?"

  • Hugh Akston||

    The answer of course, is to hold whoever asks the question upside down in a toilet bowl and then flush it.

  • Killazontherun||

    Well, it wouldn't make for a very fitting cockring given it fit a hobbit, now would it? Wait, they have big hands, maybe you wouldn't need to toss it after all.

  • BakedPenguin||

    It's funny, because the Ring is a great symbol for political power - it can only destroy and lead to negative results, but damn, don't people want it.

  • Pro Libertate||

    The Ring is definitely in DC.

  • Lord Humungus||

    OT: Would a Libertarian Military Be More Lethal?
    http://www.nationalreview.com/.....vid-french

    Military libertarians tend to know how savage our enemy is. Moreover, they have no hesitancy to use overwhelming force in defense of the nation. After all, national defense is a core function of government even in a more libertarian state. In my (admittedly anecdotal) experience, thoughtful military libertarians tend to advocate something we haven’t really tried in our more than decade-long fight against Islamic jihad — the relatively brief application of truly overwhelming destructive force against identified enemies.

    wut?

  • ||

    He seems to be claiming that an army that's been purged of its useless paper-pushers would be mor effective. Well, duh.

  • BakedPenguin||

    I understood that to be "go in, stick the enemies' heads on pikes, GTFO."

  • Outlaw||

    Correct.

    Our involvement in wars should be rare, and only when there's a congressional declaration of war, but when we are involved in one we should smash the shit out of the enemy and leave.

    The job of all successful militaries throughout history has been to kill people and destroy things.

    When you try to turn them into an international Extreme Makeover: Home Edition team shit gets stupid.

  • ||

    Charlie: Whoa! What are you doing dude?

    Dennis: What do you mean?

    Charlie: Why are you smashing stuff?

    Dennis: I'm smashing st—dude, it's important that we get rid of anything that will remind the Juarez family of their old country.

    Charlie: Oh!

    Dennis: Bro, they're Americans now, and Americans don't hold on to the past.

  • sarcasmic||

    Nuke 'em from orbit!

  • SugarFree||

    A truly libertarian military would be more concerned than the current one about not taking innocent lives (and not torturing the idea of "innocent" to justify "kill them all.") In this sense, it might be at odds with the idea of overwhelming force because it is rarely applied to only identified enemies.

    This is a bit like saying that if the world was perfect, then everything would be perfect.

  • ||

    So a "libertarian military" that is aggressive and initiates attacks? Did he just create an oxymoron?

  • Hugh Akston||

    You're an oxymoron.

  • ||

    You're a towel!

  • Agammamon||

    Wait, for *every* military operation we've done, in the 20 years I was in, SOP has been to go in with overwhelming force and completely obliterate the opposing force in a lightning fast set of strikes. How many post-Vietnam armys have withstood a US invasion for more than 3 months?

  • Hugh Akston||

    Uh, are you deliberately glossing over the decades of post-war occupations or are you just forgetful?

  • Agammamon||

    The key phrase there is *post-war occupation*, ie after the war is over.

    We come in, smash their military with overwhelming force, and then spend the next 10 years picking sand out of our noses.

    My point was that we're already using overwhelming force, that still doesn't stop and has no effect on our post-war occupation.

  • Hugh Akston||

    The point of the article is that a libertarian military would do all of the smashing and none of the occupying/nation building.

  • Agammamon||

    You didn't expect me to read the *whole* article did you?

    I was only responding to the blurb the Ayatollah of Rockandrolla posted - which says that the author doesn't think we've tried overwhelming force before.

  • Hugh Akston||

    Well, I guess we can both be right, as long as I'm slightly more right than you.

  • Lord Humungus||

    you're alright. We're alright.

  • Invisible Finger||

    Most of them. The problem is the US Military has a definition of "armies" that satisfies their collective ego rather than reality.

  • The Late P Brooks||

    After all, national defense is a core function of government even in a more libertarian state.

    A much more narrowly defined notion of "national defense" than what we currently have is also an essential part of a libertarian state.

  • Anonymous Coward||

    The state secrets privilege, outlined by the Supreme Court in a 1953 case, originally permitted the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets. It has since turned into a potent weapon the Bush and Obama administrations have used to target any lawsuits alleging illegal NSA surveillance.

    Are you suggesting that bureaucrats and elected Presidents have abused a vague power granted to them by the courts? No! I cannot believe it! I will not believe it! These are our TOP MEN. They would never encroach on our rights!

  • kinnath||

    We desperately need our own tank-guy to stand up in front of the NSA and say no more.

  • itsnotmeitsyou||

    Aside from the obvious question of WHO... HOW? If we were facing a military opponent, publicly standing up to them is a powerful statement. Standing there, for all the world to see, as they gun you down or take you away is very tangible.

    When you're dealing with snooping and collection of data, where does one stand? Outside the NSA HQ? You'd be taken away and the only media attention (if any) would be "crazy guy arrested harassing government workers"

  • UnCivilServant||

    Something tells me our tank driver wouldn't stop for that.

  • Aresen||

    Just "Another Isolated Incident" for Balko to blog.

  • Aresen||

    "By my order and for the good of the state, the bearer has done what has been done." - Letter written by Cardinal Richelieu in Alexandre Dumas' The Three Musketeers

    You can't top the classical villains. The NSA has learned from the masters.

  • Stormy Dragon||

    "The Official Secrets Act isn't there to protect secrets!"

    "It's not?"

    "No. It's to protect officials!"

  • UnCivilServant||

    Dammit! Now my brain is flooding with 'Yes, Minister' quotes.

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