President Obama has placed a federal judge in an “inescapable, paradoxical situation” in a case challenging the federal government’s authority to hide warrantless wiretapping behind a “state secrets” shield, the judge said at a hearing on December 14.
During a hearing at the Phillip Burton Courthouse in San Francisco that lasted more than three hours (accurately described by Wired as “nuanced and esoteric”), presiding U.S. District Judge Jeffrey White listened to arguments for and against a motion filed by the Obama administration Justice Department calling on the court to dismiss the case, arguing that should the matter proceed, protected state secrets would be disclosed.
In the government’s motion to dismiss the class action suit challenging the nearly unlimited scope of the domestic surveillance agency’s monitoring of citizens’ electronic communication, attorneys for the Obama administration argued that it would use the authority granted it under the Terrorist Surveillance Program only when “absolutely necessary” and that disclosing the information requested would require it to reveal protected state secrets.
The plaintiffs in the case — Jewel v. NSA — are a group of AT&T customers who accuse the NSA, former President George W. Bush, and Dick Cheney among others of illegally using “a shadow network of surveillance devices … to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications, and other communications.”
Originally filed in 2008 by the Electronic Frontier Foundation (EFF) on behalf of the plaintiffs, the suit “is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it.”
On January 21, 2010, U.S. District Court Judge Vaughn Walker granted a motion to dismiss filed by the Obama administration. Upon appeal, however, the Ninth Circuit Court of Appeals on December 29, 2011 overturned the lower court’s decision and remanded the case to district court for a hearing on the merits.
In July, 2012, EFF moved to have the court declare that the Federal Intelligence Surveillance Act (FISA) applies instead of the state secrets privilege; in response, NSA reaffirmed its “state secrets” defense.
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