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In 2008, the Electronic Frontier Foundation filed Jewel v. NSA.

This case challenges an illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency (the “NSA”) and other Defendants in concert with major telecommunications companies

Complaint

The case rested on the official acknowledgment of the NSA spying, made by President George W. Bush following the December 2005 New York Times exposure of the program
Some aspects of the Program were publicly acknowledged by the President in December 2005 and later described as the “terrorist surveillance program” (“TSP”).
and the evidence from Mark Klein, the AT&T technician who told us about the NSA's data collection rooms within AT&T.
In 2003 AT&T built "secret rooms" hidden deep in the bowels of its central offices in various cities, housing computer gear for a government spy operation which taps into the company's popular WorldNet service and the entire internet. These installations enable the government to look at every individual message on the internet and analyze exactly what people are doing. Documents showing the hardwire installation in San Francisco suggest that there are similar locations being installed in numerous other cities.

AT&T Deploys Government Spy Gear on WorldNet Network

In 2010, the district court dismissed the case for a lack of particularized standing. This had not been a government argument in the case.

neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group to which those plaintiffs belong; rather, the harm alleged is a generalized grievance shared substantially equal measure by all or a large class of citizens.

Dismissal

In 2011, the circuit court reversed, and found sufficient harm and standing.
In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action.

Opinion

In 2012, back in district court, the government moved to dismiss, for sovereign immunity, and on State Secrets grounds.

In Jewel v. NSA, under the Ninth Circuit, a frequently cited opinion is the Ninth Circuit Mohamed v Jeppesen Dataplan.

In 2002, Binyam Mohamed was flown to a secret prison in Morocco. While there, he got regular slicings of his penis, by a scalpel, among other treatment.

In 2010, the Ninth Circuit said he had no judicial redress for this. Even the most fundamental issues of justice cannot be heard, in the United States, if state secrets are at stake. It was an extreme ruling in American jurisprudence.

In December 2005, following press revelations, President George W. Bush held a press conference to defend the NSA spying. He chose to acknowledge details of the spying program.

In June 2013, following press revelations, President Barack Obama held a press conference to defend the NSA spying. He chose to acknowledge details of the spying program.

No President has ever held a press conference to defend the slicing of Binyam Mohammed's penis, or to acknowledge details about it.

This makes a difference in our current legal system. And such are the legal and political issues of our day.

The district court has released an opinion in Jewel v. NSA. In this case, State Secrets assertions have been slightly rolled back.

There are two styles of State Secrets.

  1. Reynolds. A standard about denying specific evidence in the case.
    The state secrets privilege is a common law privilege that permits the government to bar the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10 (1953).

    Opinion

  2. Totten. If the government has done something especially embarrassing and illegal, the whole case can be barred from proceeding.
    Alternatively, the state secrets privilege may be invoked to bar litigation of the matter in its entirety where “the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States, 92 U.S. 105, 107 (1875). Where the very subject matter of the lawsuit is a matter of state secret, the action must be dismissed without reaching the question of evidence.

This opinion rolls back from the extreme version of a states secrets bar on the whole lawsuit. Judgments about state secrets are more balanced and considered.

In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. 19 at 11. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.”
Because the New York Times and Guardian revelations have made the government publicly defend the program, the case as a whole can proceed. Totten does not apply.
Given 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.
In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.
Government ability to deny specific evidence will still exist. Reynolds is still in play.
However, here, the Court finds there would be significant evidence that would be properly excluded should the case proceed.
The case thus becomes a matter of the amount of evidence that can be disclosed.

From the conclusion of the opinion, the case moves forward, with an evidence and standing hurdle.

Plaintiffs may neither be able to establish standing to sue nor state a prima facie case. For the foregoing reasons, the Court GRANTS 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.
Statutory claims in the case are dismissed.
The Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity (counts 5-16 of the Jewel Complaint and causes of action 1-3 of the Shubert Complaint).
Decisions on government summary judgement motions are reserved.
The Court RESERVES ruling on the Defendants’ motions for summary judgment on the remaining, non-statutory, claims (counts 1-4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint).
And warnings that the whole thing may still be too embarrassing and illegal to discuss are given.
Although the Court finds, at this procedural posture, that Plaintiffs here do not allege the attenuated facts of future harm which barred standing in Clapper, the potential risk to national security may still be too great to pursue confirmation of the existence or facts relating to the scope of the alleged governmental Program.
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