Court Rejects 'State Secrets' Excuse For Why Feds Want Out Of Lawsuit Over NSA Warrantless Wiretapping

from the bogus-excuses dept

While there have been a number of new revelations lately about the NSA’s surveillance efforts, there have been some long-running on-going legal disputes about it as well. One of the biggest is Jewel vs. the NSA. When we last checked in on that case, the appeals court had sent the case back to the district court, rejecting many of the reasons that the district court had initially dumped the lawsuit. The key question for the district court was whether or not the feds could claim “state secrets” to dump the case again… and the court has just ruled and rejected that excuse, claiming that the government has not successfully shown that there are state secrets that mean the case cannot move forward.

Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,

because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.

507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal. 2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret.

This is a big win for the EFF, which is representing Jewel in trying to sue the government over the warrantless wiretapping. Given other cases (including the Hepting case mentioned in this ruling) which basically said that people can’t sue the telcos, but can sue the government, it would be nice to actually be able to sue the government over these actions without them simply being able to declare “state secrets” and have the case thrown out completely.

This does not mean that there aren’t issues that involve state secrets in the case — and the court notes that certainly parts of the evidence and information do need to be kept secret. But that’s no excuse for throwing out the entire case. Of course, the ruling also has some unfortunate things in it as well, dismissing statutory claims based on “sovereign immunity.” However, it leaves open the non-statutory claims for further briefing. So the case moves forward, rather than being completely shut down by a state secrets claim, but there are some limitations on where it can go. Still, given all of the recent revelations, not being able to hide completely behind “state secrets” is a big step in the right direction.

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