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Supreme Court to Consider Right to Sue in Challenge to Wiretap Law

From ABA Journal News:

In oral arguments on Monday, the U.S. Supreme Court will consider whether a group of lawyers, human rights groups and journalists have standing to challenge a warrantless wiretapping law.

The 2008 law authorizes the National Security Agency to monitor international emails and phone calls without a warrant for each target, according to Reuters and a press release by the American Civil Liberties Union, which is representing the plaintiffs.

ACLU deputy legal director Jameel Jaffer argues that the New York City-based 2nd U.S. Circuit Court of Appeals was correct when it ruled the plaintiffs may challenge the law because they faced a substantial risk their communications would be monitored and took costly measures to avoid it.

“We are hopeful that the Supreme Court will agree with the Court of Appeals that the constitutionality of the government’s surveillance powers can and should be tested in court,” Jaffer says in the press release.

The government argues that the plaintiffs don’t have standing because the surveillance is secret and they cannot prove they were harmed. A Slate column predicts the government will win, if the Supreme Court “holds to its modern, skeptical view of standing.”

But doesn’t mean the law can never be challenged, the Slate article says. “If the government prosecutes a target using information obtained from surveillance, that person will be able to argue that the introduction of the evidence would violate his constitutional rights. However, if the government avoids bringing such cases, then people who are spied on will be out of luck.”

A New York Times editorial offers a different view. “It would not require a legal stretch for the court to find that the plaintiffs had standing to sue,” the article says.The case is Clapper v. Amnesty International.

via Supreme Court to Consider Right to Sue in Challenge to Wiretap Law – News – ABA Journal.

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NSA tells privacy plaintiffs “trust us”

The public should trust that the National Security Agency will use its powers under a Terrorist Surveillance Program only when absolutely necessary, the NSA claims in Federal Court.

That’s what the NSA said in response to a class action that claims the agency would have unlimited authority to monitor anyone at any time if the class loses its lawsuit challenging the government’s claim of state secrets protection.

In its “Government Defendants’ Reply in Support of Second Motion to Dismiss and for Summary Judgment,” the NSA claims it is not obligated to turn over evidence in the class action that accused it of warrantless “dragnet” surveillance of U.S. citizens.

Lead plaintiff Carolyn Jewell represents telephone service customers who accuse the NSA of using telecommunications companies to spy on customers under the Terrorist Surveillance Program (TSP).

Created after the Sept. 11 terrorist attacks, critics claim the NASA used the TSP to violate the Constitution and the Foreign Intelligence Surveillance Act.

Jewell et al. claim that dismissal of the complaint against the NSA would be a weak concession by the judiciary, and a breach in the system of checks and balances.

The NSA wants the case dismissed because supplying evidence would compromise national security.

“This lawsuit puts at issue alleged intelligence activities of the National Security Agency (‘NSA’) purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001,” the NSA says in its response. “Plaintiffs allege that the NSA engages in warrantless ‘dragnet’ surveillance by collecting the content of millions of domestic communications, as well as communication transactional records.

“For the past six years, the nation’s most senior intelligence officials, in succeeding

administrations, have consistently advised this court that litigation of plaintiffs’ allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs’ suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling

national security interests.”

The NSA claims that Jewel’s assertion that FISA displaces the state secrets privilege is false, and that her argument that 9th Circuit “precedent concerning the privilege has been effectively overruled by the Supreme Court and that, as a result, this court may only consider a privilege assertion in response to specific discovery requests,” is also incorrect.

“Finally, citing hearsay and speculation in media reports, plaintiffs wrongly contend that their case may proceed on “‘on-privileged’ evidence,” the NSA said. “Plaintiffs’ opposition does not present a way forward, but a roadmap to why further proceedings would risk the disclosure of highly sensitive NSA sources and methods.”

U.S. District Judge Jeffery White will consider the motion on Nov. 2.

    The trial, if one occurs, is set for Dec. 14.

via Courthouse News Service.

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