Lawyers for the Electronic Frontier Foundation (EFF) [advocacy website] on Wednesday urged the US Court of Appeals for the Ninth Circuit [official website] in Seattle to preserve two lawsuits over the warrantless surveillance of US citizens. EFF argued that the government should not be able block the suits under claims of state secrets. The EFF says that the National Security Agency (NSA) unconstitutionally intercepted phone calls and emails of US citizens by accessing the communication database records from AT&T. It argues that the government has not proven a necessity for invocation of the state secrets privilege [reply brief, PDF] and alternatively, the privilege is preempted by the Foreign Intelligence Surveillance Act (FISA) [text]. EFF Senior Staff Attorney Kevin Bankston said the courts should be able to review NSA's surveillance [press release]:
The scope and legality of the NSA program has been the subject of widespread reporting and debate for half a decade—it is hardly a secret. And Congress long ago crafted balanced and comprehensive security procedures to govern courts' handling of secret evidence about electronic surveillance to ensure that the Judicial Branch is always able to watch over Executive Branch spying while preserving national security. Yet the government still claims that any judicial scrutiny of the NSA program would disclose 'state secrets' and harm national security. It's time for these lawsuits to proceed and for the courts to be allowed to do their job and determine the legality of the NSA program.The US District Court for the Northern District of California [official website] dismissed Hepting v. AT&T and Jewel v. NSA in 2009 and 2010, respectively.
The NSA has come under controversy for its surveillance since 9/11. Last January, the EFF published a report [text] summarizing nearly 2,500 pages of government documents obtained through Freedom of Information Act (FOIA) [text] litigation. Many of the documents are reports made to the Intelligence Oversight Board (IOB) [official website], an independent agency within the office of the president that oversees the Intelligence Community's compliance with the Constitution and all applicable laws, executive orders, and presidential directives. The report states, "[t]he documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed." According to the documents, the reported violations to the IOB included violations of intelligence procedures governing investigations and abuses of the FBI's National Security Letter authority, and nearly a fifth were violations of the Constitution, FISA, or other laws governing criminal investigations. The FBI said the violations were due to technical mistakes [LAT report] and the amount of substantive violations is small. Last September, the US Department of Justice (DOJ) Office of the Inspector General (OIG) [official website] released a report absolving the FBI of charges [JURIST report] that agents conducted investigations of domestic groups based on their exercise of First Amendment [text] rights.