Court rejects state secrets argument in NSA surveillance challenge

The Obama Administration had invoked state secrets privilege to block a lawsuit by a watchdog group

By Jillian Rayfield
Published July 9, 2013 1:39PM (EDT)

A federal court has rejected the Obama Administration's invocation of state secrets privilege in a lawsuit filed by the Electronic Frontier Foundation challenging the NSA's sweeping surveillance program.

The lawsuit, called Jewel vs. NSA, "challenges an illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency  and other Defendants in concert with major telecommunications companies," according to the initial complaint. Though the case was initially filed in 2008, The Guardian's recent report on NSA surveillance programs, based on leaks by Edward Snowden, appear to support the EFF's claims in the lawsuit.

The Obama Administration had asked for the suit to be dismissed because, it argued, state secrets privilege barred information about the case from being released without "jeopardiz[ing] national security," and that information was central enough to the case that it could not continue without it. But U.S. District Judge Jeffrey White wrote in his opinion that "[g]iven the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret." Though White added in his opinion that there is additional evidence that should be "properly excluded" should the case proceed.

As CNET explains:

Today's ruling (PDF) is anything but a final decision. White asked for "further briefing" from both sides on the constitutional arguments. And EFF will still need to demonstrate it can litigate without "impermissible damage to ongoing national security efforts," White said.

But overcoming the hurdle of the administration's "state secrets" claims is still a major step. The lawsuit may continue, White said, because the "procedural mechanism" of the Foreign Intelligence Surveillance Act "preempts application of the state secrets privilege."

"Over the last month, we came face-to-face with new details of mass, untargeted collection of phone and Internet records, substantially confirmed by the Director of National Intelligence," said Cindy Cohn, EFF's Legal Director, in a statement. "Today's decision sets the stage for finally getting a ruling that can stop the dragnet surveillance and restore Americans' constitutional rights."

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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