A federal lawyer told a U.S. judge in San Francisco today that proceeding in a lawsuit alleging dragnet government surveillance of Americans’ communications “puts us at risk” of endangering national security.
Justice Department attorney Anthony Coppolino urged U.S. District Judge Vaughn Walker to dismiss the lawsuit on two grounds: first, that the government is shielded by the concept of sovereign immunity and second, that allowing the case to proceed would jeopardize state secrets.
Coppolino said the Obama administration has reaffirmed the Bush administration’s position that the state secrets doctrine requires dismissal of the case.
“The government has not changed its view” that evidence that would prove or disprove the alleged surveillance must remain secret, Coppolino said.
Walker took the bid for dismissal of the case under submission and will issue a written ruling at a later date.
The lawsuit was filed against the National Security Agency and other federal agencies in September by five Californians, led by Carolyn Jewel of Petaluma.
It alleges that the NSA, working with telecommunications companies, is violating the Constitution and federal wiretapping laws by intercepting both the content and the records of phone calls and e-mails of “millions of ordinary Americans.”
The lawsuit alleges the warrantless wiretapping is part of a surveillance program authorized by former President George W. Bush following the terrorist attacks of 2001.
Lawyers for the plaintiffs argued that the government was not protected by the state secrets privilege and that a 2001 law specifically allows lawsuits against government agencies for violations of wiretapping and electronic privacy laws.
One of the attorneys, Cindy Cohn of the San Francisco-based Electronic Frontier Foundation, told Walker, “The government is arguing that the president gets to decide whether the surveillance is legal. We think the courts should decide.”
The 2008 lawsuit against the government is the latest battlefield in challenges to alleged communications surveillance.
Beginning in 2006, about three dozen lawsuits were filed in courts around the nation against telecommunications companies, alleging that they aided the NSA in warrantless wiretapping.
But those lawsuits, all transferred to Walker’s court, were dismissed by the judge in June because a law passed by Congress last year gave telecommunications companies immunity from being sued.
The new lawsuit, known as the Jewel case, took a different tactic of suing the government directly.