Smackdown NSA: the Constitution vs. the National Security StateThursday, September 26, 2013 at 1:32 pm by Guest Blogger
Written by Karen Nyhus
A knock-down, drag-out fight between basic constitutional rights and government surveillance will go another round in San Francisco federal court this week. In Jewel v. NSA (aka “Jewel”), the Electronic Frontier Foundation is suing the federal government and several high officials of the Bush and Obama administrations, charging they authorized illegal dragnet surveillance against millions of Americans in the wake of 9-11.
Despite recent revelations of a much wider surveillance program, none of it has yet been proven illegal, stopped by a court order, or led to any government official being held responsible. In Jewel, the EFF has defeated the government’s initial claims of total state secrecy and immunity from prosecution. While some charges have been dismissed, those alleging violations of Americans’ First and Fourth Amendment rights remain, as do some alleging statutory violations, and claims against government architects of the NSA surveillance individually.
This public trial may expose and judge the nature and legality of government spying.
According to Oakland attorney Joe Nicholson, interviewed for this story, Jewel and related cases are the leading legal challenges to government spying currently ongoing in the US. Others were dismissed: Hedges v. Obama, for lack of standing, and cases against the telecoms after Congress granted them retroactive immunity in 2008.
This Friday’s hearing will be pivotal. As Nicholson notes, President Obama has stated that government surveillance should be debated publicly and with respect to the rule of law, and this public trial provides such an opportunity.
While outcomes of Friday’s hearing are uncertain, Nicholson believes it will set the pace and tone of these challenges. Though the 9th Circuit has already ruled that the Jewel plaintiffs have initial standing to bring their lawsuit, the court will ultimately determine whether the evidence now in the public domain is sufficient to make a ruling on the merits of the case and, if so, to prove the surveillance is illegal.
Evidence supporting the charges has come primarily from declarations and undisputed documents provided by whistleblowers. In 2006, AT&T employee Mark Klein exposed the secret room AT&T built in a downtown San Francisco building to copy bulk Internet communications for the NSA. Most recently, Edward Snowden and others have provided evidence of the global reach, broad nature, and corporate involvement of spy programs.
This hearing will also set the timetable, determining whether the case can be resolved relatively quickly, or drag on indefinitely.
Interested members of the public are convening outside the court building at 450 Golden Gate Ave. at noon on Friday. Seating in the courtroom is limited, and any protest activity must occur outside (of the court).