Reports indicate that domestic communications are monitored
holistically, with computers searching for patterns among the metadata - think
of subject lines in e-mails. The NSA
continues to work with telephone companies; it has enlisted the cooperation of
companies that operate major internet hubs, as a good chunk of foreign internet
traffic flows through routers controlled by American companies. NSA whistleblowers and anonymous officials
have spoken of "thousands" of American citizens whose calls were monitored,
although the NSA and CIA will not cop to those numbers. The program expires at the end of 2009, at
which point the Obama administration is expected to mount a vigorous fight to reauthorize
it in full.
government, in a filing yesterday, argues that the Jewel will disclose state
secrets if it proceeds, and that if such secrets are needed for the case to be
litigated - i.e, to be argued on its merits -- it cannot be litigated. There is
ample precedent for this argument. As I've written before, the state secrets
privilege is one of the most powerful instruments of executive power. There are
no uniform standards for judges to use in order to determine whether the
government is simply asserting the privilege because they're embarrassed, or
whether the privilege's assertion really protects vital secrets. Obama has
criticized this lack of accountability, but his Justice Department has not
figured out how to retract the privilege in a bevy of Bush-era cases without
damaging the privilege itself - something they don't want to do.
government also makes a complex argument about sovereign immunity; it argues that the
case against particular persons performing their government jobs can't proceed
unless Congress waives immunity. Such
immunity is being challenged elsewhere, but only, in this understanding, can a
basic case asking for injunctive relief from the government proceed. (Glenn Greenwald makes a persuasive case about why this assertion is fairly radical.)
that's where the state secrets privilege is invoked.
Plaintiffs' Complaint quite clearly
seeks disclosure of whether or to what extent the Government may have utilized
certain intelligence sources and methods after the 9/11 attacks in order to
detect and prevent further attacks. It also seeks disclosure of whether any of
the alleged activities (if they exist) are ongoing."
As the government notes, previous courts have
given the executive branch the authority to determine whether such information
would harm national security, requires judges to give the government the "utmost"
deference, and does not even require the judge to assess the nature of the
evidence in camera.
"...the DNI has explained
that the disclosure of information concerning whether or not plaintiffs have
been subject to alleged NSA intelligence activity would inherently reveal NSA
intelligence sources and methods."
claims that the program under which the illegal "dragnet" is alleged to have
occurred - the TSP - or the first Bush Terrorist Surveillance Program - is "no
longer operative." But - the government
claims - in order to prove that in court, it would have to disclose information
about what the NSA is doing right now - and darn it, wouldn't you know, that'd
be a secret the government cannot do without.
The Government's privilege assertion
also precludes plaintiffs from establishing standing as to any statutory claim that may
survive the Government's motion to dismiss. For each cause of action,
plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that
is, subject to the alleged action being challenged. Because plaintiffs cannot
adduce proof that the content of their communications has been collected by the
Government, or that their communications records likewise have been obtained by
the Government, the most basic element of every claim--their standing as "aggrieved
persons"--cannot be established. It bears emphasis that plaintiffs' allegation
of a "dragnet" of surveillance by the NSA--the alleged interception of
communication content and records of millions of domestic and international
communications made by ordinary Americans, see, e.g. Compl. ¶ 7--does not
establish their standing. Even if that allegation were sufficient to avoid
dismissal on the
pleadings, plaintiffs would be
required to demonstrate that they personally have been subject to the alleged
communications dragnet, and the information relevant to doing so is properly protected
by the state secrets privilege."