Do the National Security Agency's dragnet surveillance programs violate the Constitution? That's the question that civil rights and privacy advocates have been trying to have the courts answer since long before Edward Snowden shared his trove of secret documents with The Guardian and The Washington Post. Now their mission finally seems to be making headway, as a federal judge ruled Monday that the Obama administration can not use its "state secrets" privilege to block a lawsuit originally brought by the Electronic Frontier Foundation in 2008.
That's big news: until now, the administration has repeatedly invoked the privilege to block almost every legal challenge the NSA has faced over its surveillance activities, even after a secret court ruled that the programs had violated the Constitution "on at least one occasion." But the ultimate goal — an official Constitutional ruling that would ostensibly bring an end to NSA's warrantless data collection programs — is still a ways off, if it happens at all.
The case, Jewel v. NSA, was filed by AT&T customers after whistleblower Mark Klein showed evidence in 2006 that the NSA, in collusion with the telecom giant, had installed networking equipment inside a secret room at a switching facility in San Francisco, allowing the agency to suck up internet traffic straight from the network's backbone. But the case hit a brick wall when the government asserted its "state secrets" privilege, a common law doctrine which came about during the Communist witch hunts of the McCarthy era.
"It's a tremendous boon that the government can't summarily kick this question out of the public courts."
Without evidence, "state secrets" has allowed the government to stop the court from challenging NSA surveillance programs based on a claim that doing so would reveal national security secrets. The privilege was originally used only to exempt individual pieces of evidence, but since 9/11 it's been increasingly used to completely dismiss cases outright. The courts have only rejected "state secrets" four times since its first appearance in 1953; in several cases, reviews found it was used improperly and that no secrets would have been exposed.
But the new ruling says that the state secrets privilege can not be applied in the Jewel case, because the rules of the Foreign Intelligence Surveillance Act (FISA) preempt it when determining whether Americans have been subject to illegal or unconstitutional surveillance.
"[State secrets] has been the government's central argument in these cases," said EFF legal director Cindy Cohn during a phone interview with The Verge. "It's a tremendous boon to the rights of millions of ordinary Americans that the court has ruled the government can't summarily kick this question out of the public courts."
The Jewel case deals partly with the NSA's "Upstream" surveillance activities, which were listed as a major intelligence source in one of the slides on the PRISM program provided by Edward Snowden, and involve tapping fiberoptic internet cables to capture web traffic en masse. But even with new evidence provided by recent disclosures on the NSA's surveillance programs, the EFF and the Jewel plaintiffs still face at least one significant obstacle.
The Obama administration can still invoke "sovereign immunity"
Because of FISA provisions brought on by the Patriot Act, the Obama administration can still invoke "sovereign immunity," which would similarly allow it to nullify legal challenges brought on by Americans who were spied on. US district judge Jeffrey White specifically notes in the opinion that the government hasn't waived its right to do so with FISA, stating that “the potential risk to national security may still be too great to pursue confirmation of the existence or facts relating to the scope of the alleged governmental program.” The US government normally has this kind of legal protection unless it is either waived or special laws apply.
Judge White cites a long-running case decided last year in which a US-based Islamic charity attempted to sue the government after it was targeted by Bush-era warrantless wiretapping. In that case, the government was able to use "sovereign immunity" to successfully strike down a lower-court decision which would have awarded the plaintiffs $20,000 each in restitution. The judge refused to make any rulings on the constitutional questions at the heart of Jewel, but the decision leaves the door open to push the case forward as more evidence of NSA programs emerges.