Two cases involving widespread warrantless wiretapping of U.S. citizens by the National Security Agency will face a major hurdle Wednesday in a federal appeals court in Seattle. A procedural hearing will be held to determine whether actions by the NSA and AT&T, which cooperated with the agency, can be challenged in court.
The first case in the twin bill, Hepting v. AT&T, was filed more than five years ago. Based on news reports, congressional admissions and documents provided by a former employee of AT&T, the lawsuit claims that AT&T violated the privacy rights of its customers by allowing the NSA to occupy one of the company's switching stations in San Francisco and monitor its customers' e-mails and phone calls without a warrant.
The government has been trying to keep the case from proceeding in the courts and has taken some extraordinary measures to do so. In opposing the lawsuit, the government argued that the case shouldn't be heard before the courts because such a hearing would jeopardize national security. When that tactic didn't work, it tried to cut out the legal legs of the case by pressuring Congress to pass a law expanding the executive branch's authority to conduct surveillance activities without a warrant.
After passage of that law, which amended the Foreign Intelligence Surveillance Act, the organization behind the initial lawsuit, the Electronic Frontier Foundation, initiated another action aimed directly against the government, Jewel v. NSA.
The Electronic Frontier Foundation will ask the appeals court to reverse a decision dismissing the Jewel case. A lower court argued that since millions of Americans were spied on by the government, no single citizen had standing to sue the government. The court's reasoning in its ruling may be weak, since the government in its filings with the appeals court spends more verbiage reheating the national security chestnut than trying to defend the lower court's logic.
With the passage of the Foreign Intelligence Surveillance Act amendments, the Hepting case took on a new dimension. Now the Electronic Frontier is using the lawsuit to challenge those amendments as unconstitutional. The amendments, the foundation maintains, give the president the power to issue a "get out of lawsuit free" card to companies that cooperate with federal snoops.
"The outcome of both Jewel v. NSA and Hepting v. AT&T will be crucial not only to those who wish to stop the spying and regain the privacy of our communications, but to upholding the constitutional limitations on the executive branch's power," the foundation said in a statement.
"Under the Constitution, important decisions about surveillance of Americans are not the executive's alone, nor are decisions about whether the Constitution and Congress' laws must be followed," it added."We need to be vigilant about protecting ourselves, and ultimately the Constitution, against actions that ignore or overstep limits on executive power, and that's why we're looking forward to these critical arguments in Seattle on August 31."