Snowden’s surveillance leaks open way for challenges to programs’ constitutionality
By Jerry Markon, Washington Post
Published: July 15
(T)he legal landscape may be shifting, lawyers say, because the revelations by Edward Snowden, a former National Security Agency contractor and the principal source of the leaks, forced the government to acknowledge the programs and discuss them. That, they say, could help plaintiffs overcome government arguments that they lack the legal standing to sue or that cases should be thrown out because the programs are state secrets. A federal judge in California last week rejected the government’s argument that an earlier lawsuit over NSA surveillance should be dismissed on secrecy grounds.
“There is one critical difference from the Bush era. We now have indisputable physical evidence that the conduct being challenged is actually taking place,” said Stephen Vladeck, an expert on national security law at American University law school. He said Snowden’s disclosures make it “more likely” that cases will at least be allowed to go forward in court, leading to a years-long legal battle over surveillance and privacy.
Steven G. Bradbury, a Washington lawyer and senior Justice Department official in that administration, expressed skepticism that the new lawsuits would turn out better than previous ones.
He said the plaintiffs would have difficulty showing that they specifically were harmed by the programs, because the data collection was so vast, and that judges could rule that government officials are immune from such suits. And even though Obama administration officials have discussed the programs, Bradbury said the government could still get cases thrown out under what is known as the state secrets privilege.
Created in the 1950s and rarely used until after the attacks of Sept. 11, 2001, it allows officials to urge courts to dismiss cases on the grounds of potential damage to national security or foreign policy. “The further details of these programs are still state secrets,” Bradbury said.
Cindy Cohn, legal director at the Electronic Frontier Foundation, a digital rights group, said the state secrets argument doesn’t apply in cases involving electronic surveillance. She pointed to last week’s decision by a federal judge in California that rejected the government’s efforts to throw out on state secret grounds a 2008 lawsuit, brought by EFF, that includes earlier incarnations of the NSA’s surveillance programs, as well as current ones. The lawsuit is now proceeding.
Although other courts are not bound by the decision, Cohn said it could be a “tremendous boon” to plaintiffs in cases filed in the past month. “It’s tremendous, because anything that allows these cases to proceed is important,” she said.
She added that her organization plans to file a lawsuit this week stemming from Snowden’s recent revelations and that she has heard about at least two additional suits in the pipeline. Sen. Rand Paul (R-Ky.) also has vowed to bring legal action against the government over its broad surveillance efforts; a spokeswoman for Paul said he is evaluating his options.
And lo it came to pass.
Electronic Frontier Foundation Sues NSA Over Surveillance
By Karen Gullo, Bloomberg News
Jul 16, 2013 1:58 PM ET
The lawsuit, filed today in federal court in San Francisco, focuses on warrantless collection of U.S. communications under an intelligence program partly disclosed by ex-government security contractor Edward Snowden and later acknowledged by the administration. The EFF sued on behalf of groups including Human Rights Watch, Greenpeace and Council on American-Islamic Relations.
“Any judicial, executive or executive authorization” of the “Associational Tracking Program or the acquisition and retention of the communications information of plaintiffs, their members, and their staffs is unlawful and invalid,” EFF legal director Cindy Cohn said in the complaint.