Court of Appeals Dismisses CCR Case Challenging NSA Surveillance Program
June 10, 2013, New York— Today, the Ninth Circuit Court of Appeals dismissed a lawsuit brought against President Barack Obama, the head of the National Security Agency (NSA), and the heads of the other major security agencies, challenging warrantless government surveillance of telephone calls and emails in the U.S. under the program first disclosed in December 2005 by the New York Times. Ironically, the dismissal comes just as a series of new stories about astonishingly broad domestic NSA surveillance have broken in the news.
The suit, CCR v. Obama
, was filed by the Center for Constitutional Rights (CCR) 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 was unconstitutional and had forced them to take costly and burdensome countermeasures to minimize the risk of having their privileged client 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. Today, the Ninth Circuit panel 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.
The Ninth Circuit stated “[a]lthough CCR might have a slightly stronger basis for fearing interception because of the lack of [any Foreign Intelligence Surveillance Court] involvement, CCR’s asserted injury relies on a different uncertainty ... namely, that the government retained ‘records’ from any past surveillance it conducted under the now-defunct TSP.”
Said Center for Constitutional Rights Attorney Shayana Kadidal. “It is the height of absurdity to dismiss this case on the grounds that the intelligence agencies cannot be presumed to save records of their surveillance.”
With this ruling, all but two of the legal challenges to the original NSA program will have been dismissed without the Obama administration ever having taken a position on whether or not the original NSA program was legal.