Alex Constantine - December 26, 2012
Suit over domestic surveillance will reveal state secrets, say DOJ lawyers
By Joe Mullin
arstechnica, Dec 14 2012
SAN FRANCISCO, California—Warrantless wiretapping by the National Security Agency began as a Bush-era program in October 2001; in 2008, the government essentially allowed the practice in the FISA Amendments Act. The same year, the Electronic Frontier Foundation filed lawsuits challenging the surveillance.
At a hearing today in San Francisco federal court, the debate over whether NSA can continue its practices heated up again. Under questioning from US District Judge Jeffrey White, EFF and government lawyers sparred about how the case should move forward, or if it can at all. The Department of Justice argues the case can't move forward—at all—without violating the "state secrets privilege."
"There is nothing non-privileged about any of this case," said DOJ lawyer Tony Coppolino. The Jewel v. NSA lawsuit filed by EFF is an example of a case where "secret and non-secret information cannot be separated," he added. "The information is inextricably intertwined, and the risk of exposure occurs at every outset. All of the NSA's methods for collecting foreign intelligence info to protect this country are privileged."
It's been a long, winding road to get here. The initial lawsuit filed in 2008 was already thrown when the first judge who heard the case ruled that it was merely a "general grievance" that couldn't sustain a lawsuit, but an appeals court disagreed and revived the case. Now it's back in district court, although with a different judge. (US District Judge Vaughn Walker, who first heard the case, has retired.)
The issue still to be decided is whether the case can move ahead, or whether it should be blocked because of the "state secrets" doctrine.
The government wants the case dismissed for additional reasons, too; one of them is that they say the plaintiffs simply don't have standing. That is, they can't prove that they were actually wiretapped by the NSA. Mark Klein, the whistleblower who revealed that AT&T was working with the NSA, didn't really know what he saw, said Coppolino; nor did J. Scott Marcus, the expert who backed up Klein's claims. "No disrespect to Mr. Marcus and Mr. Klein, but they indicated they heard something. Maybe someone from the NSA was at the facility. But they don't actually know."
"Well that's kind of a Catch-22, isn't it?" responded EFF lawyer Richard Wiebe. According to the government, "if the plaintiffs weren't subject to surveillance, then they have no standing, and no right to sue," said Wiebe. "The information [about whether they were surveilled or not] goes to the heart of the case."
At one point, Judge White asked how he should proceed if he disagrees with the government and decides not to dismiss the case at this point. The mere suggestion seemed to alarm Coppolino.
"That would be completely unprecedented in the history of the judiciary from the beginning of the Republic," he said. Discovery into whether or not a person has been subject to surveillance would "inherently risk the disclosure of information we're trying to protect. If you're going to go down this road, let us appeal [immediately]."
EFF's lawyer Richard Wiebe responded that it was the government's behavior that was truly novel.
"The mass dragnet surveillance the government is conducting is completely unprecedented in the history of the republic," said Wiebe. "At the AT&T facility, right here in San Francisco—at Second and Folsom—all of the traffic between AT&T and other providers is split. An exact copy of all of that traffic is sent to a room under the control of the NSA."
The court could, and should, set up a procedure to review evidence in camera, out of public view, said Wiebe.
Judge White kicked off the hearing by saying he had not decided how to proceed. He went through several questions over the course of a hearing that lasted about three hours. In addition to the core issues, he asked whether or not the lawsuit should be allowed to proceed against individual government officers.
EFF also tried to sue AT&T for violating its customers' privacy rights, but that legal stratagem died when Congress provided immunity to telcos in the 2008 law.
The Bush administration admitted that the government listened in on some phone calls between Americans and overseas parties, but both the Bush and Obama administrations have refused to disclose whether there is warrantless, widespread, "dragnet"-style data collection taking place within the US.
The Obama administration has generally followed the same line as the Bush administration, arguing that national security would be in danger if the allegations were to be addressed in court.
The EFF's case against the government, Jewel v. NSA, was heard together with Shubert v. Bush, a class action suit over the same issue.