The state secrets privilege in challenges to government surveillance programs

As the Washington Post reports, one of the legal obstacles theStatue_of_Lady_Justice_in_Frankfurt ACLU may face in its lawsuit challenging NSA surveillance of telephony metadata is the state secrets privilege.  In recent years, the government has used the state secrets privilege with increasing frequency to block lawsuits and prevent discovery on national security grounds. According to Professor Donohue, between 2001 and 2009 “the government has invoked the state secrets privilege in more than 100 cases, which is more than five times the number of cases previously considered.”

It’s not clear whether the government will invoke the privilege in the ACLU’s case—the DNI already acknowledged the existence of the challenged surveillance program, though not all of its details. But the scope of the state secrets privilege is the keystone issue in another important surveillance case, Jewel v. NSAThe plaintiffs in Jewel, represented by the the Electronic Frontier Foundation, have weathered a number of challenges to their suit against the NSA (including a win on standing before the Ninth Circuit), putting the issue of state secrets front and center.  The question before the court is whether FISA’s procedural mandates displace the privilege in the context of civil litigation over national-security surveillance.

The state secrets rulings in Jewel and other cases will have a significant impact on the effectiveness of ongoing and future legal challenges to executive surveillance.  If the government prevails, it will have broad authority to block lawsuits and discovery implicating its surveillance programs. A win for the plaintiffs, on the other hand, would allow legal challenges (at least those that survive standing, sovereign immunity, etc.) to proceed under FISA’s mandates, which require courts to implement secure procedures to protect government secrets.

Jewel is currently before the Northern District of California; the government recently requested an abeyance in the case. The briefs and other relevant documents are available on EFF’s website, here.  [The Berkeley Samuelson Clinic (my employer) filed an amicus brief in the case, on behalf of People For the American Way Foundation.  As always, the views expressed here are mine and do not necessarily reflect those of the Samuelson Clinic or its clients.]

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1 Response

  1. Howard Gilbert says:

    It is obviously no secret to anyone who has paid a phone bill that the phone company generates call records. It is easy to understand that these records could be transmitted to the NSA. From yesterday’s government statement:
    “The metadata acquired and stored under this program may be queried only when there is a reasonable suspicion, based on specific and articulated facts, that an identifier is associated with specific foreign terrorist organizations. In 2012. less than 300 unique identifiers met this standard and were queried. … The program is subject to strict controls and oversight: the metadata is segregated and queries against the database are documented and audited. Only a small number of specifically-trained officials may access the data; the Foreign Intelligence Surveillance Court reviews the program every 90 days; and the data must be destroyed within 5 years.”

    So there are two pieces to the program. The part that has been disclosed and about which there is no plausible state secret is that some business records of some phone companies are transferred from the phone companies to a segregated government system where they are not immediately available for analysis. Then the secret part is which phone companies are involved and the 300 identifiers, what they are, how they were gathered, and how the queries are executed.

    The problem from a litigation point of view is that the records in question appear to be no less secure and confidential in the segregated government system than they were in the phone company, yet this transfer is the only thing that has been disclosed. It is not plausibly a state secret, but it is also not plausibly illegal, especially since it was conducted pursuant to a order of a Federal District court judge. The state secret doctrine protects the queries, but unless you can prove in advance you were one of the 300 you don’t get even that far.