U.S. government moves to block further litigation in NSA surveillance cases

National intelligence director says continued litigation would reveal state secrets related to national security

The U.S. government again claimed state-secrets privileges in a move to block two lawsuits challenging the constitutionality of the National Security Agency's monitoring of Americans' phone communications and email, according to court filings late Friday.

Director of National Intelligence James Clapper said in a filing in U.S. District Court, Northern District of California, that even though aspects of the government's surveillance programs have been disclosed, further litigation of the lawsuits would jeopardize secrets of operational details necessary for state security.

The government also declassified and made public a variety of material and documents related to the cases and to surveillance programs initiated by former U.S. President George Bush, including earlier assertions of state-secrets privileges.

For the first time, the government officially disclosed that "President Bush authorized NSA to collect: (1) the contents of certain international communications, a program that was later referred to as the Terrorist Surveillance Program (TSP), and (2) telephony and Internet non-content information (referred to as metadata) in bulk, subject to various conditions."

President Bush issued authorizations approximately every 30-60 days, according to the declassified material on the Tumblr page of the Office of the Director of National Intelligence.

The programs initiated by President Bush operated for several years under executive power before coming under judicial and congressional oversight. The NSA's surveillance included warrantless monitoring of email and phone calls. The two lawsuits in the Northern District of California District Court challenge the legality of a Congress-approved, modified version of that warrantless surveillance.

Many formerly secret operational details of the NSA's surveillance have come to light in the wake of disclosures made by former NSA contractor Edward Snowden to the media.

Nevertheless, continued litigation of the California court cases could compromise national security, Clapper said in the Friday court filing.

"In my judgment, disclosure of still-classified details regarding these intelligence-gathering activities, either directly or indirectly, would seriously compromise, if not destroy, important and vital ongoing intelligence operations," Clapper wrote.

The Electronic Frontier Foundation, which is leading one of the District Court cases, slammed the government filings.

"The governments attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing," said EFF Legal Director Cindy Cohn in a statement.

In the Northern District of California case led by the EFF, Carolyn Jewel is the plaintiff suing on behalf of AT&T customers. In the companion case, plaintiff Virginia Shubert is suing on behalf of all Americans.

State-secrets privileges allow the government to prevent sensitive information from being revealed in court, even if that means a case must be dismissed for lack of evidence. The Department of Justice wants Judge Jeffrey Wright to dismiss the NSA cases without ruling on the constitutionality of the surveillance programs.

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Marc Ferranti

IDG News Service
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