As the old adage goes, trust is earned. It’s not a privilege freely given. The EFF has been battling Jewel v. NSA since 2008 over the mass-slurping up of emails, calls and other electronic communications. When “trust” is used in same sentence as the NSA regarding its Terrorist Surveillance Program, especially when applied to warrantless ‘dragnet’ surveillance of innocent Americans, some brains might not compute and stumble over such a combination. Sadly, it’s no surprise the agency once again claimed that supplying evidence would compromise national security and wanted the case dismissed.
Having choked on my drink when I saw the RT headline ‘Just trust us - NSA to privacy advocates in court,’ I wanted to find this exact quote in the court documents and take a screenshot to share it with you because you just can’t make up such a golden mind-boggling quote as that. Courthouse News also reported, “The public should trust that the National Security Agency will use its powers under a Terrorist Surveillance Program only when absolutely necessary, the NSA claims in Federal Court.” Maybe I missed it, but sadly, I didn’t find the word “trust” at all in the court document [PDF].
However, when running a simple “Find” through the document [PDF], the word “secret” (or a form of the word such as secrets, nonsecret) appears 35 times within the 21 pages; “state secret”(s) appears 33 times. By not counting the seven times that “non-privileged” appears, “privilege” itself (or a form of it as in privileged, privileges) is in the court documents 62 times! We get it; they don’t want us to know.
That’s a pretty decent indication of how much the NSA wants this case to go away and be dismissed. The NSA continues on throughout the document without defining “what it has or has not done,” or what methods it uses, and how the EFF’s case is based on “double hearsay.” Courthouse News wrote that this "trial, if one occurs, is set for Dec. 14."
EFF legal director Cindy Cohn told me, "It's not a trial, it's cross-motions. We argue that the FISA law requires the court to decide whether the alleged dragnet surveillance is legal and preempts the state secrets privilege. The government argues that the case should be dismissed on the state secrets privilege. The case is very much alive."
Earlier this month, the Supreme Court axed the EFF’s wiretapping appeal against the NSA, Hepting v. AT&T.
Regarding Jewel v. NSA that the NSA hopes to kill this time with state secrets, the government wrote: "Finally, citing hearsay and speculation in media reports, plaintiffs wrongly contend that their case may proceed on 'on-privileged' evidence. Plaintiffs' opposition does not present a way forward, but a roadmap to why further proceedings would risk the disclosure of highly sensitive NSA sources and methods."
So I asked Cindy: If everything is a secret and the NSA won't reveal it unless forced, or "hearsay" from people who do claim to know, then how does a person win this dreaded catch-22?
This is what the EFF's Cindy Cohn told me:
First, everything isn't a secret. We have lots of evidence of the surveillance which we submitted to the court (look at the Summary of Evidence document we filed if you want a nice narrative connecting it all). This includes now 4 whistleblowers, the schematics and list of equipment used in the AT&T facility on Folsom Street in San Francisco, to accomplish the surveillance, and multiple admissions by the government officials themselves in the press and in Congressional testimony. We have far more than hearsay and speculation in media reports and we argue that those add up to enough to get us past this motion.
From there, the case should proceed to discovery. Luckily the FISA law has a procedure for handling secret NSA evidence, in a provision called 50 U.S.C. 1806(f), where the government can petition to have certain secret stuff presented in secret to the judge. That's the procedure we think should apply. That same provision requires the judge to determine whether the surveillance was legal.
This isn't a new problem. The government has to use classified evidence in many court cases, especially when prosecuting foreign spies or terrorists. It's just not the case that the government's actions cannot be evaluated for whether they acted legally or constitutionally because they don't want to reveal it or because they have legitimate national security concerns if the information was made public. The FISA law says just the opposite and we're merely asking the court to apply the law.
Plus there have been hundreds of thousands of articles written about warrantless spying. If none of that counts, then what about NSA whistleblower Thomas Drake or William Binney? Binney served as senior NSA crypto-mathematician, working for the agency from 1965 to 2001, and previously warned us that the NSA is “storing everything they gather. You can watch everybody all the time with data-mining. Everything a person does becomes charted on a graph, ‘financial transactions or travel or anything.’ Thus, as data like bookstore receipts, bank statements, and commuter toll records flow in, the NSA is able to paint a more and more detailed picture of someone's life.”
Yet no matter how many times NSA officials deny this spying on electronic communications or play “word games” about not keeping dossiers on all citizens, civil liberty and privacy advocates, who are not out to harm United States national security, still have concerns; the courts have yet to help answer these potential constitutional violations.
There is another upcoming landmark case, Amnesty International v. Clapper, on October 29; the Supreme Court “will hear arguments on whether plaintiffs represented by the ACLU have the right to challenge the constitutionality of the law.” Binney wrote on Politico that this case is shaping up to the same old song and dance routine. “Unfortunately, the government has tried to block the courts from ever reaching that constitutional issue, arguing that unless the plaintiffs can prove they will be monitored (which is impossible, since the list of who is monitored is classified), they cannot sue.”
The NSA cannot be trusted with this power. No agency should be. Since 2001, the NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing. Using shockingly fast machines called NARUS devices, the NSA can monitor virtually every single phone call, email and text that passes through the United States. The agency can make a mirror image of all those communications, then funnel those copies to massive data vaults. When it wants to, the NSA can then go through and compile a dossier on each and every one of us. That would be well and good if the agency followed the law and tracked only suspected terrorists. But it does not. Under the warrantless wiretapping program and now the FISA Amendments Act, the NSA conducts blanket, dragnet surveillance of Americans’ international communications, even when there is not even a hint that we’ve done something wrong.
The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches — Congress and the president — cannot be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation’s strength for more than 200 years. We cannot allow the rhetoric of fear to justify abandoning our Constitution.
Enough with the dang "secrets" and "privilege" claims by the NSA when it comes to monitoring innocent Americans. We the People know the warrantless spying has happened. Another way to look at it is through the Chinese proverb, “Fool me once, shame on you; fool me twice, shame on me.” SCOTUS has to come through for the rights of the people, uphold the law, and defend our nation’s constitution!