The U.S. gov't. is monitoring the content of millions of telephone and Internet communications of ordinary Americans.
The government should not get to use limited evidentiary privilege to duck liability for the "warrantless" surveillance of U.S. citizens, a class says.
Lead named plaintiff Virginia Shubert says that the government actively violates the Fourth Amendment rights of its citizens, as well as the Foreign Intelligence Surveillance Act (FISA), under the Terrorist Surveillance Program (TSP) authorized by then President George W. Bush.
After the 9th Circuit looked at the case in December 2011, Shubert filed an amended complaint in May, and the National Security Administration countered with a third motion to dismiss last month.
Shubert warned U.S. District Judge Jeffrey White in San Francisco to affirm that the class has a valid legal claim.
"The government is engaged in a massive, criminal, domestic spying Dragnet that monitors the content of millions of telephone and Internet communications of ordinary Americans," according to the opposition brief authored by Emery Celli attorney Ilann Maazel. "Now, for the third time in this case, the government seeks to transform a limited, common law, evidentiary privilege into sweeping immunity for its own unlawful conduct. If defendants were to prevail, no court could ever stop the government from spying upon millions of innocent Americans, even if unlawful, unconstitutional and criminal."
Federal officials are overreaching in interpreting the "states secrets" privilege as able to provide immunity against litigation stemming from its actions, the brief states.
Calling the surveillance program a "crime" in violation of FISA and the Constitution, the class says that separation-of-powers principles "require" the court to review the government's "unconstitutional" conduct.
It also asserts that "the president cannot use the state secrets privilege to create immunity from suit for unconstitutional acts."
"The president offers no limiting principle for this breathtaking extension of the state secrets privilege," Shubert wrote, citing the 1952 decision in Youngstown Sheet & Tube Co. v. Sawyer.
"Any unconstitutional conduct, any violation of law - no matter how many people it affects, no matter how violative of fundamental rights - cannot be stopped, or even revealed, if its revelation might harm national security. Such an awesome power 'either has no beginning or it has no end. If it exists, it need submit to no legal restraint ... [it may not] plunge us straightway into dictatorship, but it is at least a step in the right direction.'"
http://www.courthousenews.com/2012/10/19/51474.htm
Court Filing: http://www.courthousenews.com/2012/10/19/wiretap.pdf