Tomorrow, a three-judge panel will hear arguments on whether the case, which may provide the clearest indication yet of how the spying program has worked, can go forward. So far, evidence in the case suggests a massive effort by the NSA to tap into the backbone of the Internet to retrieve millions of e-mails and other communications, which the government could sift and analyze for suspicious patterns or other signs of terrorist activity, according to court records, plaintiffs' attorneys and technology experts.
The panel is sitting in San Francisco. The Justice Department will try to stop the suits from going forward.
Tomorrow's hearing will focus only on whether the two lawsuits should be dismissed on the basis of the government's assertion of a "state secrets privilege." The outcome could determine whether the courts will ever rule on the legality of surveillance conducted by the NSA without judicial oversight between 2001 and January 2007, when the Bush administration first subjected the program to the scrutiny of a special intelligence court.
"If the courts take the position that the state-secrets privilege prevents the case from going forward, I think effectively there'll never be a decision about the legality of the program," said Cindy Cohn, the Electronic Frontier Foundation's legal director.
The plaintiffs argue that the government went way, way too far in its surveillance.
In the first of two lawsuits before the court, the Electronic Frontier Foundation, a privacy group, alleges in a class action that AT&T collaborated with the NSA to operate a "dragnet" that illegally tracked the domestic and foreign communications of millions of Americans. The second case centers on the disbanded al-Haramain charity and two of its attorneys, who say they were given -- and then forced to return -- a Treasury Department document showing that they had been the focus of NSA surveillance.
There's is plenty of evidence to show that purely domestic communications were targeted, not just international communications. The case will undoubtedly move -- slowly -- from the 9th circuit in San Francisco to the Supreme Court. Keep in mind that the surveillance was taking place during the run-up to the 2004 general election, an election which had some interesting, unexpected outcomes.
Here's the EFF's website page on the lawsuit. Don't miss the revised ATT logo.
