San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of whistleblowers, intelligence experts, and veterans urged a federal appeals court Wednesday to reject government attempts to bury yet another lawsuit challenging illegal surveillance with baseless claims of "state secrets."

"This group includes experts from throughout America's intelligence community, and they are all concerned about the government's abuse of the state secrets privilege," said EFF Legal Director Cindy Cohn. "If courts cannot review potentially illegal behavior by the government, then there's no meaningful oversight. That's unconstitutional. America needs to be able to protect against officials who abuse their power."

EFF's amicus brief, filed in Al-Haramain Islamic Foundation v. Obama, was joined by Coleen Rowley, a retired FBI agent who blew the whistle on intelligence failures before the September 11th attacks, and Thomas Drake, a former NSA executive and whistleblower about systemic privacy violations in intelligence programs.

Also signing the brief was James Bamford, author of three important books on the NSA, and the Government Accountability Project, the nation's leading whistleblower organization. Other signers include a counterterrorism deputy from the Bush Administration, a senior CIA analyst, a former intelligence officer from the U.S. Army, and other military veterans.

The Al-Haramain Islamic Foundation alleges in its lawsuit that federal agents illegally wiretapped calls between the charity and its lawyers. The government has refused to confirm or deny any court order authorizing surveillance, arguing only that the state secrets privilege protects the government from any litigation. A district judge disagreed, and ruled that the government violated federal surveillance law.

The government appealed that ruling to the 9th U.S. Circuit Court of Appeals. In the brief filed today, EFF and other signers asked the court to uphold the district judge's decision, and allow the court to do its job.

"Congress has already provided the courts with strong, clear security procedures for handling evidence related to secret government surveillance. Letting the courts do their job and judge the legality of government wiretapping will not risk national security," said EFF Senior Staff Attorney Kevin Bankston. "The real risk is in allowing government officials to shield their conduct from judicial scrutiny based on broad assertions of state secrecy, which is a recipe for abuse."

EFF has two cases of its own aimed at obtaining court review of warrantless domestic surveillance: Hepting v. AT&T was the first lawsuit against a telecom over bulk interception of Americans calls and emails; Jewel v. NSA is directed against the government and government officials. Both Hepting and Jewel are currently at the appeals court, which heard oral arguments in each case last month.

For the full amicus brief:

For more on this case:


Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

Cindy Cohn
Legal Director
Electronic Frontier Foundation