Friday, April 10, 2009

The brief in Jewel v. US

Ok, I just read the brief in Jewel v. US, regarding the surveillance claims and alleged violations of ECPA, SCA, the Wiretap Law and FISA.

The DOJ makes two arguments. One, that Congress has not waived the Federal government's right to be immune from lawsuits in this area. Therefore the court must dismiss the case.

Two, that regardless of the merits of the suit, (in other words, let's assume the government broke the law and would otherwise be held to account in a court of law) the court must not hear the case due to special circumstances. Namely, that to hear to the suit would disclose information about intelligence gathering activities which would cause exceptionally grave harm to national security. This includes facts about the programs Bush authorized after 9/11 and before FISA was revised.

Incidentally, the brief states that allegations that the Bush progam collected information from people in the US are "false" but then states they can't prove that, because to do so would reveal secrets. The brief also states that even to admit that the government was working with AT&T, for example, would harm national security.

The brief also seeks summary judgment, arguing that the plaintiffs can't make a prima facie case, since - you guessed it, the facts they would need to show standing and injury, in other words, that they were personally wiretapped - are also secret.

It's worth noting that this is a brief, not a policy statement, nor is it only about FISA, nor is it a defense of Bush's violations of the law, though it could be read that way, or even a denial that they did break the law. It's a motion to dismiss a lawsuit because revelations during the ensuing litigation would harm national security.

Two immediate solutions would be Congress to re-write the laws to waive immunity, and for the judge in this case to review the DOJ claims in private. Also, of course, to ask Obama himself - in a press conference, perhaps - how, even conceding the facts in this case, plaintiffs such as these can seek justice, under his Presidency.

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