Can the Government Claim ‘State Secret’ Privilege to Spy On You?

Alice Salles Comments

As news outlets report on Chinese hackers stealing the National Security Agency (NSA)’s hacking tools, it’s fair to say that most of the media completely ignored a late April court decision that justified NSA surveillance. Thanks to our friends at the Tenth Amendment Center, this piece of news did not go unnoticed.

The April 25 decision was handed down by U.S. District Judge Jeffery White, who stated that the NSA can use state secrets privilege to prevent individuals from suing the agency over its warrantless mass-surveillance programs. The case, which is dated back to 2008, has been in the court system since then, bouncing back and forth between federal courts. And now, thanks to White, we know the justice system has simply accepted the Department of Justice’s arguments against the plaintiffs.

During court hearings, officials stated that revealing whether the five plaintiffs had their data collected to the public would threaten national security, which White accepted, adding that “the court cannot issue a judgment without exposing classified information.” Furthermore, he added, the evidence submitted by the plaintiffs wasn’t enough to prove that the NSA violated the Wiretap Act and the Electronic Communications Privacy Act. Despite his claim, one piece of evidence brought forward by the plaintiffs included a 2003 document from a former AT&T technician that showed just how the firm routed private internet date through a secret room run by the NSA.

The judge also declined to use a 2009 NSA draft report leaked by Edward Snowden, the former NSA contractor who vouched for the document’s legitimacy in a sworn declaration, by saying that because the government didn’t authenticate it, it was not a valid document.

As explained by TAC’s Mike Maharrey, the NSA had provided the court with evidence regarding the plaintiffs’ claims while telling the judge that the evidence shouldn’t be used. Otherwise, the feds stated, the case would “jeopardize national security.”

If anything, this serves as a great example of why we shouldn’t rely on the justice system to protect our rights and make sure federal agencies aren’t abusing their power.

As Maharrey put it, “the federal government investigated the federal government and determined there was no way for the federal government to determine if the federal government did anything wrong without jeopardizing the federal government’s federally protected secrets.”

While the plaintiffs’ lawyers, who are with the Electronic Frontier Foundation (EFF), called the case a “Catch-22,” there’s absolutely nothing contradictory about this situation.

The NSA never used lawful methods to obtain private information, as the agency has long relied on obscure blanket authorizations to spy on Americans. This isn’t a bug in the system but the rule, as government and the bureaucracy that runs it always puts government first.

Officials have no incentives to care for our privacy and property, as it will continue to justify its abuses through fear-based campaigns. Unfortunately, the only way around this is to break up and make the federal government increasingly less powerful.

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