October 18, 2010 | By Kevin Bankston

In Jewel v. NSA Warrantless Wiretapping Appeal, Government Still Singing Same Old State Secrecy Tune

Last Friday, in a brief filed with the Ninth Circuit Court of Appeals, the Obama Administration continued the government's half-decade-long battle to ensure that no judge ever rules on the legality of the National Security Agency's warrantless dragnet surveillance program, a program first revealed in 2005 by the New York Times and detailed by technical documents provided by former AT&T technician Mark Klein.

The brief filed Friday is the government's response to EFF's appeal of the Jewel v. NSA case, a lawsuit brought against the government and government officials on behalf of AT&T phone and internet customers whose communications have been swept up in the mass surveillance program along with those of millions of other Americans.

In January, the district court issued an order dismissing the case based on the incorrect argument that, because so many Americans have had their communications and communications records illegally obtained by the government, no single person has legal "standing" to challenge the ongoing program of government surveillance. In other words: if everyone is being spied on, no one can sue. As EFF argued to the Ninth Circuit in its opening appellate brief, that ruling "risks creating a perverse incentive for the government to violate the privacy rights of as many citizens as possible in order to avoid judicial review of its actions."

The government in Friday's brief gives some lip service to the district court's conclusion that the plaintiffs claims were merely a "generalized grievance" that cannot be litigated. However, and emboldened by the Ninth Circuit's recent and dangerously misguided decision in Mohamed v. Jeppesen Dataplan, the government dedicates most of its brief to arguing the same thing it has been arguing for the past five years in every other warrantless wiretapping case: that any attempt by the courts to judge the legality of the alleged surveillance would violate the state secrets privilege and harm national security.

We've heard the government sing this tune before, most notably in our other warrantless wiretapping case Hepting v. AT&T where we withstood a motion to dismiss based on the state secrets privilege before Congress stepped in to try and shut down the case with a new immunity law for the telecoms that helped the NSA break the law. Just as we're vigorously appealing the dismissal of Hepting based on that unconstitutional law, we also look forward to responding to the government's latest attempt to sweep the NSA program under the rug, both in our reply brief due to be filed with the Ninth Circuit next month and eventually at oral argument before the court.


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