July 26, 2013, New York – Last night, the Center for Constitutional Rights filed a request that the entire Ninth Circuit Court of Appeals reconsider the dismissal of its lawsuit against President Barack Obama, the head of the National Security Agency (NSA), and the heads of the other major national security agencies, challenging warrantless government surveillance of international telephone calls and emails under the program first disclosed in December 2005 by The New York Times. The dismissal came just five days after the publication of the first of Edward Snowden’s revelations of broad NSA surveillance and the PRISM program. The filing highlights the importance of judicial review of secret NSA surveillance given the intense public debate about the legality of the NSA’s tactics.
Said Center for Constitutional Rights Attorney Shayana Kadidal, “Today’s filing challenges a catch-22 set up by the court: if members of the public find proof they were subject to surveillance, the proof is kicked out of the case as a state secret, but without such proof, even the most rational fears of surveillance will be rejected as ‘too speculative’ to support standing. Given recent revelations about the breadth of NSA surveillance, the plaintiffs’ fears are far from speculative.”
The suit, CCR v. Obama, was filed by the Center for Constitutional Rights on behalf of itself and its legal staff working on national security cases whose communications fit the criteria used by the NSA for targeting calls and emails under its surveillance program. CCR attorneys argued the program flouted existing surveillance statutes and had forced them to take costly and burdensome countermeasures to minimize the risk of having their privileged communications intercepted by the NSA.
The case, initially filed in 2006 against President George W. Bush, sought an injunction that would prohibit the NSA from conducting warrantless surveillance within the United States. When, in response, the government claimed it had shut down the program in January 2007, the CCR asked the court to order the government to destroy any records of surveillance that it still retains from the illegal NSA program. The lower court refused to do so, holding that a plaintiff challenging a secret surveillance program must be able to prove they were actually eavesdropped upon by the program in order to be able to challenge it in court, and the case moved to the Ninth Circuit Court of Appeals. A three-judge panel of the Ninth Circuit affirmed that decision, relying on the Supreme Court’s February 2013 dismissal of a similar challenge to the 2008 FISA Amendments Act, Clapper v. Amnesty International.
To date the Obama administration has refused to take a position on whether or not the original NSA program was legal.
July 26, 2013