Obama
administration drowning in lawsuits filed over NSA surveillance
Published time: July 16, 2013 17:39
Edited time: July 17, 2013 10:26
Edited time: July 17, 2013 10:26
Get short URL
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.
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 to vacate 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."
Sen. Ron Wyden (Chip Somodevilla /
Getty Images / AFP)
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.
