Government seeks to shut down NSA wiretapping lawsuit


California—Warrantless wiretapping by the National Security Agency began as a Bush-era program in October 2001; in 2008, the government essentially allowed the practice in the FISA Amendments Act. The same year, the Electronic Frontier Foundation filed lawsuits challenging the surveillance.

At a hearing today in San Francisco federal court, the debate over whether NSA can continue its practices heated up again. Under questioning from US District Judge Jeffrey White, EFF and government lawyers sparred about how the case should move forward, or if it can at all. The Department of Justice argues the case can’t move forward—at all—without violating the “state secrets privilege.”

“There is nothing non-privileged about any of this case,” said DOJ lawyer Tony Coppolino. The Jewel v. NSA lawsuit filed by EFF is an example of a case where “secret and non-secret information cannot be separated,” he added. “The information is inextricably intertwined, and the risk of exposure occurs at every outset. All of the NSA’s methods for collecting foreign intelligence info to protect this country are privileged.”

It’s been a long, winding road to get here. The initial lawsuit filed in 2008 was already thrown when the first judge who heard the case ruled that it was merely a “general grievance” that couldn’t sustain a lawsuit, but an appeals court disagreed and revived the case. Now it’s back in district court, although with a different judge. (US District Judge Vaughn Walker, who first heard the case, has retired.)

The issue still to be decided is whether the case can move ahead, or whether it should be blocked because of the “state secrets” doctrine.

The government wants the case dismissed for additional reasons, too; one of them is that they say the plaintiffs simply don’t have standing. That is, they can’t prove that they were actually wiretapped by the NSA. Mark Klein, the whistleblower who revealed that AT&T was working with the NSA, didn’t really know what he saw, said Coppolino; nor did J. Scott Marcus, the expert who backed up Klein’s claims. “No disrespect to Mr. Marcus and Mr. Klein, but they indicated they heard something. Maybe someone from the NSA was at the facility. But they don’t actually know.”

“Well that’s kind of a Catch-22, isn’t it?” responded EFF lawyer Richard Wiebe.

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