As we learn more and more about the scope and extent of the National Security Agency’s (NSA) warrantless wiretapping program, we’re also learning — to the surprise of precisely no one — how difficult it will be to challenge such domestic espionage in court.
Even as USA Today reports that the NSA “has been secretly collecting the phone-call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth,” and even as a new federal lawsuit was filed in Manhattan last Friday seeking $50 billion in civil damages from Verizon, the government has moved to quash the wiretap debacle’s first lawsuit, filed five months ago.
Back in January, the digital-rights group Electronic Frontier Foundation (see “Frontier Justice,” News and Features, February 9) brought a class-action suit against AT&T, accusing the telecom giant of offering the NSA unfettered access to key facilities and databases, and of continuing to assist the government in the surveillance of phone and Internet communications among millions of Americans.
Last Saturday, in the wee hours of the morning, lawyers from the Justice Department filed a motion in San Francisco federal court seeking to dismiss the suit, claiming that a trial would reveal state secrets and compromise national security. The motion was classified — it was kept secret even from EFF and AT&T, the suit’s two parties; only a heavily redacted version was made public — and was accompanied by declarations from Director of National Intelligence John Negroponte and Lieutenant General Keith Alexander, director of the NSA. “Any attempt to proceed in this case,” wrote Alexander, “will cause exceptionally grave damage to the national security of the United States.”
“We’re not alleging anything in our lawsuit that isn’t all over the news already,” counters EFF media coordinator Rebecca Jeschke. (Cindy Cohn, the foundation’s legal director, was unavailable for comment.) “Saying that we’re causing grave danger to national security is simply not true. And our lawsuit going away isn’t going to change the national debate about this program. The facts are all out there, reported by a lot of different organizations who have all done a lot of independent research.”
Once upon a time, the executive branch rarely used its state-secrets privilege. (It was invoked 55 times between 1954 to 2001, according to the Washington Post, and 23 times in the four years since 9/11.) But if Saturday’s murky Justice Department gambit is any indication of the difficulties that legal challenges to NSA wiretapping will face, it also means groups like EFF will redouble their efforts.
“It definitely makes things more difficult when there’s a motion to dismiss that we can’t read,” notes Jeschke wryly. “But we’re certainly going to fight it as hard as we can and defend it vigorously because we think this is a case that needs to go forward. We believe it’s important in America that corporations follow the law. There’s very clear law that says you have the right to private communications — through your telephone and through your computer. These companies broke that law.”
US District Court Judge Vaughn Walker will hear its dismissal notion on June 21. In the meantime, learn more at eff.org/legal/cases/att.