Federal Judge Rejects State Secrets Claims: EFF Case To Proceed

The EFF has been attempting to sue the government over illegal surveillance since the Bush administration, and, despite repeated attempts to have the case dismissed because of State Secrets, a federal judge has now ruled that the case must go forward in public court, throwing out the government's State Secrets argument. From the order: Having thoroughly considered the parties' papers, Defendants' public and classified declarations, the relevant legal authority and the parties' arguments, the Court GRANTS the Jewel Plaintiffs' motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. 1806(f) of FISA. In both related cases, the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs' constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs' fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants' motion for summary judgment on the remaining, non-statutory claims." Although some statutory claims were dismissed, the core Constitutional questions will be litigated.

Comments

Judicial control is what was missing

[Anonymous Coward]

Military will always expand their power. The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing. Each and every time, warrant by warrant.

When the FISA court granted *blanket* warrants, for all data of a class, on the *trust* that the NSA would filter and only use the portion of the data for the intended purpose it failed its duty. When NSA decided to start storing data on everyone in 4 huge data centers, it clearly intended to keep everything on everyone. Not limiting the data to just terrorists.

Where was the judicial oversight? Kept in the dark by abuse of secrecy.

Re:Judicial control is what was missing

[gl4ss]

The NSA and CIA have nothing to do with the military.

yeah sure.. who controls them? the head of the military. of what institution was nsa transformed from? the military. with whom do both organizations work? with the military..

Re:Judicial control is what was missing

[MarlowBardling]

A secret court, unexposed to public scrutiny, will be abused. The idea that oversight equals accountability outside of the view of the public is fairly trusting, and misses the fact that you're trying to fix a problem by making it bigger.

If the judicial branch of the government is going to work outside the framework of law that it is built upon, the what's the point? Without checks that can actually be checked by an outside agency, there is no way to limit infractions, corruption, and abuse.

Re:Judicial control is what was missing

[swillden]

The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing

The justice system is supposed to be blind and not "trust" anyone. I don't think the FISA court was set up to deal with the Constitutionality of the law itself, but to grant or deny warrants.

The fundamental basis for the FISA court's decisionmaking on the warrants is constitutionality, plus, of course, USC 50 and the established precedents. The problem isn't that that the FISA court (FISC) can't evaluate the constitutionality of the law, it can, but that FISA hearings are ex parte, so there's no one to argue the view that the law is unconstitutional.

Another serious, though subtle, problem with the FISC structure is that there is effectively no appellate review... the court has no oversight. There is an appellate court over FISC, but there is no one to force it to be used. If the government gets the answer they want from the court, fine, they go ahead. If they don't, it's purely at the government's discretion whether they want to appeal, and risk having a precedent set that goes against them if the higher court upholds the original ruling or whether they'd rather just tweak their request a bit and try again.

This creates a situation where the government can push the boundaries of what FISC will allow with no concern that they might get slapped down in any definitive way. As it turns out, based on the numbers published, the court doesn't say "no" very often anyway, and of course there is no appeals process for approved warrants.

The bottom line is that our courts are adversarial for a reason, and since the FISA procedures omit that very important element they're strongly biased in favor of whatever view the government chooses to argue -- because that's the only view that is argued.

Re:Judicial control is what was missing

[fnj]

We need a separate court that is secret like FISA

No Thank You. We do not. And we should not tolerate one. No secret courts. No star chambers. No secret surveillance. No government operations of any kind that are secret except legitimate military secrets in time of legitimate war.

No Shadow Government Damn It.

Re:Judicial control is what was missing

[kilfarsnar]

Anyways I dont see how his claim that the military will always expand its power holds water. The military is at the mercy of the executive branch with regards to policy and the legislative branch with regards to funding.

Yeah, I'd say those with power always (or at least often) try to expand their power. It's not a military thing, it's a power thing.

Re:Judicial control is what was missing

[gl4ss]

look man, we all know why "cia isn't military" on paper. it's the same reason why u2 spyflights were done by "civilian" pilots. you know it's bullshit, the money comes from the same budgets and the same guy can order both to do whatever he wants.

you could quite easily argue that CIA is the first step on the line of semantics bullshit that leads straight to gitmo. it's just about bending the rules. "we're not military! we just happen to do everything a military does, but since military isn't allowed to do this we do it. sweeeet?"

Re:Not exactly a secret anymore

[pla]

However, there will be cases that deal with actual state secrets. For those, we need a court set up to deal with that sort of thing

No. We need a lack of state secrets. We need an open, transparent government that actually acts in the interests of its people rather than its CEOs. We need a court set up to try every breach of public trust as a capital offense.

We need an asteroid.

Re:Seven Expectations

[bill_mcgonigle]

Don't worry - they'll start the next illegal program now so that when this one gets struck down, its replacement will be humming along nicely.

'Soverign immunity' is what makes this form of government unjust in the first place. To hear the government lawyers use it as a defense claim is to hear them say, "but your honor, we're entitled to injustice." It's enough to make one's inner Bastiat's skin crawl.

Re:Not exactly a secret anymore

[interkin3tic]

However, there will be cases that deal with actual state secrets.

I'm honestly having a hard time picturing what those cases would be. I could see the need for secret courts if one assumes that the very existence of a spy program to listen to foreign terrorists' cell phone calls is a secret. But that's idiotic. The terrorists know we're trying to spy on them. We know that they know. Even before Snowden or Binney. Al Quaeda has been acting covertely since before we actually WERE listening. They weren't holding public meetings in Sudan to discuss the best ways to attack the US.

Regular courts deal with things that need to be kept secret: the names and addresses of witnesses against criminals isn't published in a "People with a price on their heads weekly" magazine. Regular non-secret courts can handle secrets. They won't be outing informants.

Lastly, the pointless secrecy is massively counterproductive. Leaks are going to happen if you make it a moral obligation for someone to report it as you do with secret courts and clearly perverting justice. It seems clear to me that the leaks are going to be more dangerous than you'd have with non-secret courts. The Manning leak had, if I recall, actual sensitive information that regular courts would have likely kept secret, such as informant identities.