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



A 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."