"It's time to end the delay, not extend it."
EFF yesterday filed an opposition to the government's request last week for an indefinite "abeyance" in Jewel v. NSA, our lawsuit filed in 2008 to try to stop the NSA spying that is currently pending in federal court in San Francisco. The government's request came after the President, the Director of National Intelligence and many others publicly confirmed that the NSA collects Americans' phone records on a massive scale, and new evidence in leaked NSA slides substantiated the evidence from AT&T whistleblower Mark Klein that the NSA is conducting "upstream" collection of communications content.
In December, 2012, the court in San Francisco heard two motions—one by EFF asking the court to recognize that a statute called 50 U.S.C. section 1806(f) effectively overrides the state secrets privilege in cases arising from electronic surveillance and another by the government to have the case dismissed under the state secrets doctrine. EFF's opposition argued:
The Court should decisively reject the government defendants’ gambit to plunge plaintiffs’ motion, and the entire lawsuit, into a state of suspended animation simply because their motion now lies in tatters. For the past five years, this lawsuit has inched forward at less than a snail’s pace. Defendants have yet to answer plaintiffs’ complaint. Meanwhile, the abuses and illegal invasions of the privacy of plaintiffs and millions of other Americans continue unabated and unadjudicated.
Noting that EFF has been trying to get these claims decided by true judicial review in one form or another since 2005, EFF urged the court not to allow the government to continue its tactic of infinite delay:
Plaintiffs are entitled to their day in court to pursue the judicial remedies Congress has created for unlawful surveillance and to challenge the shifting secret legal theories, untested by any adversary proceedings, used over the past 12 years to justify the dragnet surveillance program within the echo chamber of the Executive Branch.
A similar opposition has been filed by the companion case, Shubert v. Obama.