As some well know, the debate over unconstitutional wiretapping and other communications surveillance is far from over. This December the United States District Court will hear summary judgment arguments for Jewel v. NSA, a case led by the Electronic Frontier Foundation against the National Security Agency and other government agencies to end that agency’s illegal program of dragnet surveillance of the American people. Filed in 2008, the case features evidence from a related 2006 case, Hepting v. AT&T, brought against AT&T by its customers, in which former AT&T employee Mark Klein testified that the company had worked with the NSA to route Internet traffic to a “secret room” accessible to the NSA.

Given the organization’s longstanding commitment to protecting civil liberties, this matter continues to be of particular concern to People For the American Way Foundation which filed an amicus brief in support of the Hepting plaintiffs in 2006 and filed a similar brief in support of the Jewel plaintiffs last Friday.

PFAWF’s most recent brief points out that the legislative history of FISA (Foreign Intelligence Surveillance Act) makes clear that Congress deliberated on the question central to the case – whether the need for secrecy in gathering intelligence should mean that the Executive branch’s domestic electronic surveillance should be exempt from any judicial review – and found that it should not. In other words, Congress found that national security concerns do not automatically call for a simple dismissal of civil liberties concerns and entrusted to the courts a procedure to address such concerns.

The brief, written with the University of California, Berkeley Law School’s Samuelson Law, Technology & Public Policy Clinic, states:

The government’s invocation of the state secrets privilege, in response to allegations that it unlawfully surveilled the domestic communications of millions of Americans, subverts the balance between civil liberties and the need for secrecy in litigation over government surveillance that Congress carefully crafted in FISA. Accepting the government’s state secrets claim would replace the legislative compromise embodied in FISA with a system of unrestrained administrative discretion that would let the Executive single-handedly dictate when and how it may subject the public to surveillance in the name of national security.