Judge cites state secrets risk in dismissing warrantless wiretapping suit

By Josh Gerstein
April 26, 2019 "Information Clearing House" - 

A federal judge has dismissed a long-running lawsuit over President George W. Bush’s warrantless wiretapping program, ruling that allowing the case to go forward would create an unacceptable and exceptionally grave danger to the country.

“The Court cannot issue any determinative finding on the issue of whether or not Plaintiffs have standing without taking the risk that such a ruling may result in potentially devastating national security consequences,” U.S. District Court Judge Jeffrey White wrote in his ruling on Thursday.

The suit, filed in 2008, alleged that the snooping — eventually named the Terrorist Surveillance Program by the Bush administration — violated the Fourth Amendment of the Constitution as well as the Foreign Intelligence Surveillance Act.

The effort is known to have included a massive database of telephone calls placed and received by Americans, although the full scope of the surveillance remains classified. The Bush, Obama and now Trump administrations have all invoked state-secrets claims to try to shut down the litigation.

The case has a long and circuitous history in the courts. Brought by the digital-rights group Electronic Frontier Foundation, or EFF, the suit was dismissed in 2009 by a previous judge who said the plaintiffs lacked sufficient proof to establish that they were surveilled. The case was later reinstated by the 9^th U.S. Circuit Court of Appeals.White previously ruled that the plaintiffs were unable to prove standing to pursue their Fourth Amendment claims without exposing state secrets. In the ruling Thursday, he said the Foreign Intelligence Surveillance Act claims also could not proceed because there was no way to publicly discuss the way the program might have affected the plaintiffs without getting into highly classified information.

White received extensive secret briefing and evidence from Justice Department attorneys before issuing his ruling Thursday, which included a classified section that was not released.

Lawyers challenging the surveillance hoped their case would be buoyed by a ruling from the 9th Circuit in February in another long-running suit related to an undercover FBI operation focused on Southern California mosques.

But White, who was appointed by Bush, ruled that case was not of much relevance to the one over the warrantless wiretapping.

“The Ninth Circuit was not presented with the issue of what to do when, as here, the answer to the question of whether a particular plaintiff was subjected to surveillance … is the very information over which the Government seeks to assert the state secrets privilege,” the judge wrote.

“The Court finds that because a fair and full adjudication of the Plaintiffs’ claims and the Defendants’ defenses would require potentially harmful disclosures of national security information that are protected by the state secrets privilege, the Court must exclude such evidence from the case,” White added. “The Court finds that it has reached the threshold at which it can go no further.”

EFF’s executive director, Cindy Cohn, vowed to appeal.

“We are disappointed that the case was dismissed on the basis of the government’s state secrecy arguments,” Cohn said in a statement. “The American people deserve to know whether mass surveillance is legal and constitutional. 

Instead of proceeding to the legal merits of the government’s programs, the Court deferred to the government’s state secrecy arguments. We look forward to seeking review in the Ninth Circuit.”

A Justice Department spokeswoman declined to comment on the decision.

This article was originally published by "Politico" -

http://www.informationclearinghouse.info/51506.htm