A lawsuit brought the Electronic Frontier Foundation against the NSA for illegal spying on American citizens can continue after a federal rejected the government’s argument that the suit could reveal “state secrets” and therefore threaten national security. The state secrets argument usually shuts down cases, but not this time.
U.S. District Judge Jeffrey White in San Francisco rejected the [Obama] administration’s claim that the lawsuit could not proceed because it might reveal “state secrets” and endanger national security.
The Electronic Frontier Foundation filed the lawsuit, called Jewel v. NSA, in 2008 to challenge a NSA’s warrantless surveillance program that vacuumed up Americans’ confidential electronic communications. It alleges that the NSA “intentionally and willfully caused” or directed AT&T to permit access to its fiber links in violation of federal wiretapping laws and the U.S. Constitution.
The ruling is not a final victory but an important first step in advancing the case. EFF still has a long way to go.
White asked for “further briefing” from both sides on the constitutional arguments. And EFF will still need to demonstrate it can litigate without “impermissible damage to ongoing national security efforts,” White said. But overcoming the hurdle of the administration’s “state secrets” claims is still a major step. The lawsuit may continue, White said, because the “procedural mechanism” of the Foreign Intelligence Surveillance Act “preempts application of the state secrets privilege.
Once the state secrets privilege is properly invoked it is essentially absolute and ends a case. It is by far the government’s strongest card. The magical words “national security” can make the Constitution disappear in an instant.
Hopefully this is just the beginning of the NSA facing accountability in the courts, everyone knows they won’t face it Congress.