Many of the questionable actions taken by our government in the wake of the 9/11 terrorist attacks have been defended on the grounds of state secrecy or executive privilege. It’s been pretty effective thus far in stopping challenges mounted against secret surveillance programs, but the state secret defense has just been dealt a substantial blow.
You may recall the EFF has been involved in a pretty important class action lawsuit called Jewel v. NSA. The lawsuit was filed in 2008, but has been dismissed and reinstated more times than I would like to count. The latest update came this week when the the U.S. District Judge for Northern California ruled that the lawsuit couldn’t be dismissed under the state secrets privilege, and allowed it to progress.
“The court rightly found that the traditional legal system can determine the legality of the mass, dragnet surveillance of innocent Americans and rejected the government’s invocation of the state secrets privilege to have the case dismissed,” said Cindy Cohn, EFF’s Legal Director. “Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence. Today’s decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans’ constitutional rights.”
In short, the court found that the lawsuit as a whole couldn’t be thrown out. It did, however, say that some evidence must be kept secret. That’s a given, and I don’t think anybody could complain about that. It’s still a major win to see a court agree that citizens can challenge secret wiretapping laws.
It will be interesting to see where Jewel goes now. The lawsuit already had a lot of evidence that pointed to the NSA engaging in mass surveillance, but now the plaintiffs have plenty more evidence thanks to the Snowden leaks. Of course, it’s not a given that the court will allow such evidence, but it will undoubtedly inform the proceedings going forward.