November 23, 2010 | By Cindy Cohn

EFF Urges Supreme Court to Block Government Overreach in State Secret Contract Dispute

EFF and the plaintiffs in an ongoing lawsuit over a notorious case of illegal government spying urged the U.S. Supreme Court last week to reject a government attempt to have the Court address constitutional questions about the state secrets privilege in a contract dispute case involving the privilege.

The state secrets privilege is a doctrine that allows the Executive to block evidence from being presented in a court on the grounds that national security requires the information to remain secret, and it's been employed in both of EFF's ongoing lawsuits over illegal domestic surveillance. Another lawsuit that's had long-running battles over state secrets questions is Al-Haramain Islamic Foundation v. Obama, and we joined together with the Al Haramain plaintiffs in an amicus brief filed in this case: General Dynamics Corporation v. United States.

In General Dynamics, the government sued a federal contractor but then attempted to use the state secrets privilege to prevent the contractor from fully defending itself. In its initial briefing to the Supreme Court, the government invited the Court to address whether the state secrets privilege has its basis in the Constitution. EFF is concerned because such a ruling, while not relevant to the General Dynamics case, could elevate the state secrets privilege from an evidentiary rule created by the courts to Constitutional stature at a time when the Executive is making increased use of it, including to toss cases entirely out of the court system.

Most lower courts recognize that the state secrets privilege doesn't stem from the Constitution, and in this amicus brief we have told the Supreme Court that a contract dispute case such as General Dynamics is not the appropriate vehicle for consideration of this important constitutional question.

EFF's cases -- Hepting v. AT&T and Jewel v. NSA -- are both currently pending in the 9th U.S. Circuit Court of Appeals. The suits assert that the U.S. government, with assistance from major telecommunications carriers, has engaged in a massive program of illegal mass surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001. The Al-Haramain case alleges targeted warrantless wiretapping of an Islamic charity and their lawyers by the NSA. While the exact facts of the case are held under tight seal, the suit is based on a document the government accidentally disclosed to the plaintiffs that allegedly documents the illegal surveillance.

"This friend-of-the-court brief is part of an ongoing effort by EFF and the Al-Haramain legal team to prevent abuses of the state secrets privilege, previously by the Bush administration and now, disappointingly, by the Obama administration," said Jon B. Eisenberg, attorney for the Al-Haramain plaintiffs.

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