On Friday, EFF urged a federal judge in San Francisco to reject the U.S. government's stale arguments about "state secrets" and finally let our lawsuit against illegal NSA untargeted spying on millions of Americans get its day in court. If you weren’t able to attend in person, you can still get an inside look: the three-hour hearing was recorded by the court, and is available to the public here (unfortunately it is in a proprietary format). EFF Fellow Richard Wiebe argued for the plaintiffs in Jewel.
The government has been fighting to bury Jewel v. NSA since it was filed in 2008, claiming that the NSA program https://www.eff.org/nsa-spying/how-it-works is too secret to be litigated. EFF has consistently argued that in passing FISA in 1978 after another NSA spying scandal, Congress preempted the state secrets privilege, creating a separate but secure way for courts to determine whether electronic surveillance is legal. U.S. District Court Judge Vaughn Walker agreed with EFF’s position that FISA trumps the state secrets privilege in another case, called Al Haramain, which was also discussed at the hearing.
As the judge in the case, U.S. District Judge Jeffrey White of San Francisco, noted, the government’s state secrets argument is a catch-22, which wouldn’t allow any discussion of potential law-breaking at all. Department of Justice lawyer Tony Coppolino warned that letting the Jewel case continue would be “completely unprecedented in the history of the judiciary from the beginning of the Republic.” But as EFF Fellow Richard Wiebe correctly noted, the mass dragnet surveillance the government is conducting is what is is “completely unprecedented in the history of the republic.”
The next step is a ruling from Judge White, which could come in several months.