Will NSA leaks put surveillance programs in legal jeopardy? Experts have doubts.


The National Security Agency building at Fort Meade in Maryland (Charles Dharapak/AP)

The disclosures of the sweeping government collection of telephone and Internet records have reinvigorated a debate over whether the programs can be challenged by those who see them as unconstitutional surveillance.

In revealing his identity Sunday as the principal source of the recent leaks, Edward Snowden, a contractor for the National Security Agency, said he hoped the programs will now face legal jeopardy for the first time. The same day, Sen. Rand Paul (R-Ky.) vowed to bring a class-action lawsuit against the Obama administration over the spying, saying he is seeking the support of 10 million Americans.

But experts and lawyers who have been through the legal wars over surveillance sounded a strong note of caution Monday, saying the government fiercely resists such lawsuits on national security grounds. About 70 suits were filed after the George W. Bush administration’s warrantless wiretapping was revealed in 2005; nearly all have been dismissed, including one thrown out by a federal appeals court Monday.

“The courts have made it very hard to do this,’’ said Steven Goldberg, a lawyer in Portland, Ore. “How do you get a judge to be strong enough to stand up to what we call the government’s talismanic utterance of national security in court?’’

Goldberg lost one such high-profile case, filed by the al-Haramain Islamic Foundation, even though the government accidentally turned over a document that the charity’s attorneys said showed it was a target of warrantless surveillance. A federal appeals court in California last year dismissed the lawsuit, ruling that the government was immune from such claims.

Other lawyers expressed optimism that Snowden’s disclosures, by forcing the Obama administration to publicly acknowledge the programs’ existence, could trigger further, more-successful lawsuits. The American Civil Liberties Union took an initial legal step Monday, urging the secret court that oversees government surveillance in national security cases to make public its opinion that was the legal basis for the newly revealed phone program.

The disclosures fueling the debate over surveillance and privacy came last week, starting with a report by the British newspaper the Guardian about the program that collects data on all phone calls made on the Verizon network. Later in the week, The Washington Post and the Guardian disclosed the existence of a separate program, code-named PRISM, that collects the Internet data of foreigners from major Internet companies.

Robert Chesney, a national security expert at the University of Texas Law School, said the new revelations will not help potential plaintiffs overcome government arguments that they lack legal standing to sue or that the programs are privileged as a state secret. Created in the 1950s and rarely used until after the attacks of Sept. 11, 2001, the state-secrets privilege allows the government to urge courts to dismiss cases on the grounds of potential damage to national security or foreign policy.

“Revealing that they do this sort of thing does nothing,” said Chesney, who added that the surveillance activity “is exactly what was contemplated” by 2008 amendments that expanded the Foreign Intelligence Surveillance Act and were meant to strengthen the government’s monitoring of potential terrorists.

Jonathan Hafetz, a law professor at Seton Hall University, disagreed, saying the new revelations make it harder for the government to argue that cases should not go forward because plaintiffs cannot prove they were targets of surveillance. The Supreme Court accepted such an argument in narrowly dismissing a challenge to the 2008 law in February, with Justice Samuel A. Alito Jr. writing for the majority that the law’s challengers could only “speculate” about the surveillance.

“It’s very hard for the government to maintain now that they are not in fact sweeping up our communications,’’ said Hafetz, a former ACLU lawyer. “It makes it clear that these claims are far from speculative.’’

The recent revelations “could be game-changer,” Hafetz said, though he added, “None of this mean lawsuits will succeed.”

Snowden, in an interview with The Post, argued that the legal landscape has changed. “The government can’t reasonably assert the state-secrets privilege for a program it has acknowledged,” he said.

Obama administration officials, in response to the furor created by Snowden’s leak of information, have acknowledged that both programs exist and defended them as vital for protecting Americans from terrorism. They have revealed few details, speaking about the programs in general terms.

Jerry Markon covers the Department of Homeland Security for the Post’s National Desk. He also serves as lead Web and newspaper writer for major breaking national news.
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