This is especially troubling since we now can never know the true nature of the relationship between Google and the NSA, the Obama administration continues to defend their supposed right to conduct warrantless surveillance on the American people, the NSA continues to expand their facilities like never before and warrantless wiretaps have become disturbingly common.
Without actually commenting on the facts of the case, the Supreme Court refused to review the December decision of a lower court which dismissed the EFF’s suit challenging the NSA wiretapping program.
The heart of the lawsuit is the 2008 legislation which retroactively declared all that all telecommunications companies cannot be sued for their cooperation with the U.S. government in their warrantless eavesdropping program instituted in the wake of the tragic events of September 11, 2001 by the Bush administration.
Bush signed the legislation in 2008 and the EFF quickly appealed after a federal judge in San Francisco initially dismissed their case.
“Among other things, the EFF claimed the legislation, which granted the president the discretion to invoke immunity, was an illegal abuse of power,” writes David Kravets for Threat Level.
The evidence behind the lawsuit stems mostly from documents released by former AT&T technician Mark Klein. These documents indicated that the NSA was actively conducting internet traffic surveillance based out of a secret room at an AT&T facility in San Francisco along with others around then nation.
However, the warrantless wiretapping of international phone calls both to and from Americans by the federal government was revealed as early as 2005 by The New York Times.
The EFF’s legal director, Cindy Cohn, expressed disappointment over the court’s decision because “it lets the telecommunication companies off the hook for betraying their customers’ trust.”
Indeed, it also lets the telecommunications companies get away with assisting the government in their seemingly endless quest to undermine our most basic rights.
Threat Level rightly points out that the Obama administration has continued the legacy of the Bush administration in failing to confirm or deny the spying allegations. However, “Bush did admit that the government warrantlessly listened in on some Americans’ overseas phone calls, which he said was legal.”
I see this somewhat like the Obama administration’s Attorney General Eric Holder claiming that secret reviews of classified evidence count as due process when deciding if an American can be targeted for assassination. It’s really no surprise seeing as Obama himself makes statements about the drone war which are “total baloney.”
When it comes to the dragnet surveillance of Americans via both telephone and internet, the Obama administration has taken Bush’s approach of claiming that exposing the program would breach national security.
This tactic is so prevalent that through six long years of legal battles, the actual merits of the case have never been properly assessed by the court.
However, there is still some hope for a legitimate challenge to the surveillance program since the EFF also filed suit against the government itself after U.S. District Judge Vaughn Walker shut down the case against the telecommunications companies.
While Judge Walker threw that case out as well by claiming it was not an actionable claim but just a “general grievance” from the public, that decision was reversed by a federal appeals court.
9th U.S. Circuit Court of Appeals Judge Margaret McKeown ruled that the claims of the EFF “are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.”
“Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution,” Judge McKeown added.
That case will be heard in a San Francisco federal court next month so long as all goes according to schedule. Unsurprisingly, the Obama administration is already attempting to get it thrown out of court.
The Obama administration claims that this case, like the others, threatens to expose state secrets and thus poses an unacceptable danger to national security.
“When the state secrets doctrine is invoked, judges routinely dismiss cases amid fears of exposing national security secrets,” writes Kravets.
Unfortunately, since a judge kowtowed to Obama in upholding the radically unconstitutional indefinite detention provisions of the National Defense Authorization Act for Fiscal Year 2012, I expect no less in this case.
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