July 17, 2013
Attorneys for the Electronic Frontier Foundation have sued the Obama administration and are demanding the White House stop the dragnet surveillance programs operated by the National Security Agency.
Both the White House and Congress have weighed in on the case of Edward Snowden and the revelations he’s made by leaking National Security Agency documents. Now the courts are having their turn to opine, and with opportunities aplenty.
Day by day, new lawsuits waged against the United States government are being filed in federal court, and with the same regularity President Barack Obama and the preceding administration are being charged with vast constitutional violations alleged to have occurred through the NSA spy programs exposed by Mr. Snowden.
The recent disclosures made by Snowden have generated commotion in Congress and the White House alike. The Department of Justice has asked for the 30-year-old former Booz Allen Hamilton worker to be extradited to the US to face charges of espionage, and members of both the House and Senate have already held their share of emergency hearings in the wake of Snowden’s series of disclosures detailing the vast surveillance programs waged by the US in utmost secrecy. But with the executive and legislative branches left worrying about how to handle the source of the leaks — and if the policies publicized should have existed in the first place — the courts could soon settle some disputes that stand to shape the way the US conducts surveillance of its own citizens.
Both longstanding arguments and just-filed claims have garnered the attention of the judicial branch in the weeks since the Guardian newspaper first began publishing leaked NSA documents attributed to Snowden on June 6. But while the courts have relied previously on stalling or stifling cases that challenge Uncle Sam’s spy efforts, civil liberties experts say the time may be near for some highly anticipated arguments to finally be heard. Now on the heels of lawsuits filed by the likes of the American Civil Liberties Union and the Electronic Privacy Information Center, groups are coming out of the woodwork to wage a legal battle against the White House.
The most recent example came this week when a coalition of various organizations filed suit together against the Obama administration by challenging “an illegal and unconstitutional program of dragnet electronic surveillance, specifically the bulk acquisition, collection, storage, retention and searching of telephone communications information.” Represented by attorneys from the EFF and others, the plaintiffs in the latest case filed Tuesday in San Francisco federal court include an array of groups, such as: First Unitarian Church of Los Angeles; Bill of Rights Defense Committee; Calguns Foundation; California Association of Federal Firearms Licensees; Council on Islamic Relations; Franklin Armory; Free Press; Free Software Foundation; Greenpeace; Human Rights Watch; Media Alliance; National Organization for the Reform of Marijuana Laws; Open Technology Institute; People for the American Way, Public Knowledge; Students for Sensible Drug Policy; TechFreedom; and Unitarian Universalist Service Committee.
Cindy Cohn, the legal director of the EFF, told the Washington Post that the NSA leaks credited to Snowden have been a “tremendous boon” to the plaintiffs in recently filed court cases challenging the surveillance state. The courts are currently pondering at least five important cases, Cohn told the Post, which could for once and for all bring some other issues up for discussion.
- A d v e r t i s e m e n t
Since June 6, the American Civil Liberties Union , a Verizon Wireless customer and the founder of conservative group Judicial Watch have all filed federal lawsuits against the government’s collection of telephony metadata, a practice that puts basic call records into the government’s hands without a specific warrant ever required and reported to the media by Mr. Snowden. Larry Klayman of Judicial Watch has also sued over another revelation made by Snowden — the PRISM Internet eavesdropping program — and the Electronic Privacy Information Center, or EPIC, has asked the Supreme Court tovacate the order  compelling Verizon Business Network Services to send metadata to the feds.
Perhaps most important, however, is a California federal court’s recent decision to shutdown  the government’s request to stop the case of Jewel vs. NSA from proceeding. That debate first began in 2008 when Jewel, a former AT&T customer, challenged the government’s “illegal and unconstitutional program of dragnet communications surveillance” as exposed by a whistleblower at the telecom company. That case has seen roadblock after roadblock during the last five years, but all that changed earlier this month. The government long argued that Jewel v. NSA can’t go up for discussion because the issues at hand are privileged as ‘state secrets’ and can’t be brought into the public realm.
“[T]he disclosure of sensitive intelligence sources and methods . . . reasonably could be expected to cause exceptionally grave harm to national security,” the government wrote in one earlier filing . “The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”
Following Snowden’s recent disclosures, though, Judge Jeffrey White of the Northern District of California ruled on July 8 that there’s a way for those cases to still be heard.
“The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government’s invocation of the state secrets privilege to have the case dismissed,” the EFF’s Cohn, who is working on the case, said in a statement issued at the time of the ruling. “Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today’s decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans’ constitutional rights.”
Weighing in weeks later to the Post, Cohn said that outcome could have more of an impact than many might imagine. “It’s tremendous, because anything that allows these cases to proceed is important,” she said.
Speaking to the New York Times this week, American Civil Liberties Union attorney Jameel Jaffer said that until now the government has operated a “shell game” to shield it’s surveillance programs from litigation. “[T]he statute has been shielded from judicial review, and controversial and far-reaching surveillance authorities have been placed beyond the reach of the Constitution,” he said.
Should Cohn’s prediction come true, though, the courts could decide to weigh in and reshape the way the government currently conducts surveillance.
According to University of Pittsburgh law professor Jules Lobel, a victory there could come in more than one way. “There is a broader function to these lawsuits than simply winning in court,” he told the Post. “The government has to respond, and forcing them to go before a court might make them want to change aspects of the programs.”
“The government does things to avoid embarrassment,’’ he added, “and lawsuits are a key pressure point.’’
Interviews to the Post and the Times come just days after Sen. Ron Wyden (D-Oregon), a long-time member of the Senate Intelligence Committee, said  he thought the revelations made by Snowden may influence the White House to reconsider their surveillance practices before the courts can even have their chance.
“I have a feeling that the administration is getting concerned about the bulk phone records collection, and that they are thinking about whether to move administratively to stop it,” Sen. Wyden told the Times.
“I think we are making a comeback,” he said.