According to the Supreme Court, the legality of NSA mass surveillance can’t even be legally challenged.
This was the message the Court sent when it refused to take up Jewel v. NSA, allowing an appellate court decision to stand.
The high court’s decision further underscores the futility of depending on federal courts to challenge federal surveillance power. Tenth Amendment Center executive director Micheal Boldin called it “a really bad strategy.”
“We don’t expect it to ever get the job done.”
The Electronic Frontier Foundation (EFF) sued the NSA in 2008 on behalf of Carolyn Jewel and several other AT&T customers in an effort to end dragnet surveillance of millions of ordinary people. The EFF based its case on declarations from three NSA whistleblowers, along with other evidence that included documents published by the Washington Post and the Guardian. The evidence showed that the NSA collected communication directly from fiber optic cables. It also revealed a domestic telephone record collection program that the government confirmed in 2013. Mark Klein worked as an AT&T tech who claimed the communications giant routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
In 2015, U.S. District Judge Jeffrey White denied the plaintiffs’ challenge saying that it would require “impermissible disclosure of state secret information” The Ninth Circuit of the U.S. Court of Appeals upheld the district court opinion, affirming that “state secret privilege” blocked the plaintiff’s efforts to tp prove that their data was intercepted. Unable to prove that, they had no standing to sue.
As EFF put it, the Supreme Court allowed the case to be dismissed because the surveillance program that everybody has known about since Edward Snowden released a trove of documents in 2013 is a “secret.”
“Yes, you read that right: something we all know is a still officially a “secret” and so cannot be the subject to litigation.”
As the EFF explains, the U.S. government contends that “even if all of the allegations of serious law-breaking and Constitutional violations are true, surveillance of millions of ordinary Americans is exempt from judicial review.”