Jewel v. NSA Case Management Hearing
Jewel v. NSA is one of several cases against unconstitutional surveillance in the courts. This one is FIVE years old – in fact, it was originally founded on the facts revealed by Mark Klein, who spoke at our rally on 1984 Day. For background and further documents, please visit the Electronic Frontier Foundation website. Today, we heard a very interesting ruling from the judge in the case, that fundamentally benefits the plaintiffs (all US citizens and all AT&T customers, each represented by a lead plaintiff). But, it’s procedurally and strategically complex, so it bears some explanation.
TL;DR: A whole lot of evidence that was declassified or otherwise made public can now be used to establish standing in the case.
Why does that matter? The courts require evidence that the plaintiff has been a victim of illegal surveillance for the case to move forward – this is “standing”. The government has cunningly classified the targets of surveillance so that the victims cannot present their evidence to the court. The Snowden releases and FOIA releases have lead to a massive declassification of evidence necessary to show that every American has the right to sue. To cite the releases for the purposes of arguing standing, they must be in the record. The case, however, is premised on old filings and the admissibility of classified evidence has already been addressed – so, we have to ask the judge to include the new information in the record. Fortunately the judge reopened that can of worms, and ordered the government to revise the classified/withheld evidence and add evidence that was declassified to the record, giving the plaintiffs the ability to base their arguments on the releases. The judge wants to see facts distinguishing this case from Clapper v. Amnesty International, and has handed access to those facts to the plaintiffs on a platter.
I will describe the hearing in detail, and correct me if you think that was not what he did!
The judge issued a ruling today based on many briefs filed on “threshold” issues. Threshold issues are things like standing, preemption, access to classified evidence, etc – before the government explains why it is not in violation of the Fourth Amendment. So far the government has not written their answer to the complaint – they have merely raised the threshold issues. We were hoping that today, the judge would dispose of the threshold issues and set a schedule for discovery. That didn’t happen, but as I said earlier, it’s for the best. If the judge had ruled that the plaintiffs had standing, that would have been appealed (technical term: “interlocutory appeal”), further delaying the case. And the plaintiffs still wouldn’t have anything stronger than Clapper v. Amnesty International, who didn’t have standing according to the Supreme Court. So back to square one.
The judge laid out four more threshold issues, with arguments to be submitted:
1. If FISA overrides the state secrets doctrine for the statutory claims under FISA (an act of congress), does it also override it for constitutional claims? To be submitted by the government by Dec 20.
This is a fairly complicated issue, but suffice to say, the state secret doctrine does NOT benefit us. It allows the government to hide more evidence. So far, the judge has only ruled that FISA overrides it for statutory claims. But we care about the constitutional claims (violations of the Fourth Amendment) far more. The government does not want FISA to override the state secrets doctrine, so that’s what they will be arguing.
2. Do the FISA procedural mechanisms also apply for the constitutional claims? To be submitted by the government by Dec 20.
I dunno what this is about, or what affect it has. Seems unimportant.
3. If FISA overrides both statutory claims and constitutional claims, and the FISA procedural mechanisms apply to both: Show that the plaintiffs have standing without damage to national security, with reference to Clapper v. Amnesty International footnote 4. To be submitted by the plaintiffs by Jan 31.
This is the “meat and potatoes” so to speak. See above – we need to show that the harm is not speculative or future-oriented, but that it has already occurred.
4. After the record has been corrected to reflect declassified documents, the government must show the actual impact of the purported risks to national security. To be briefed by the government by Dec 20.
Two additional crucial points made by the judge:
- The government must revise/put into evidence the declassified documents by Dec 20 - that means they have to comb through all evidence ever withheld from 2007, 2009 and 2012. And the judge anticipates in advance that the plaintiffs will insist more documents were declassified and that the government missed stuff, and plans that they can raise those objections on Jan 10.
- The judge anticipates that there may be further FOIA releases and therefore the plaintiffs may ask for a further delay to add the evidence if needed.
As you can see, the deck is stacked in favor of the plaintiffs here. They have one issue to argue, and they already know what’s declassified/citable, so they have a lot more time to write it. However, each party has to write a response, and then a further reply, to each issue. The final filings are due Feb 28.
If all goes well, we can expect a ruling by spring 2014. That means the government’s answer, and discovery, and all the other juicy stuff won’t come until next summer. But at least the argument for standing is extremely strong now. We must get past threshhold issues to get anywhere in the case.
And at the end of the day Fourth Amendment protections of electronic data, metadata, and a host of other private things haven’t been awarded by the Supreme Court. Our greatest hope is in a Supreme Court ruling that embraces the full reality of the NSA’s activities, and the full reality of electronic data as it stands today. These court cases are essential. They are slow, frustrating, and may appear irrelevant. But one perspective is that it’s the crowded on-ramp to the superhighway of freedom.
See you all tomorrow!