Former President Bush instigated the Terrorist Surveillance Program (TSP) following 9/11. This led to widescale surveillance of US citizens. “As an NSA operative with personal knowledge admitted on national television: ‘The National Security Agency had access to all Americans’ communications: faxes, phone calls, and their computer communications...” note the plaintiffs. “It didn’t matter whether you were in Kansas, you know, in the middle of the country and you never made foreign communications at all. They monitored all communications.’”
The plaintiffs’ case is that this is in contravention of the constitution. The government response is that it is protected by state secrets privilege, which protects it from prosecution where national security is concerned. “The law is clear,” it said, “that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”
The plaintiffs disagree. In their opposition to dismissal they make four basic arguments: the Foreign Intelligence Surveillance Act (FISA) pre-empts state secrets privilege, state secrets privilege doesn’t apply in this instance, it violates the Fourth Amendment, and the government arguments do not support dismissal.
The stakes, claim the plaintiffs, are high. “If defendants were to prevail, no court could ever stop the Government from spying upon millions of innocent Americans, even if unlawful, unconstitutional, and criminal,” they claim. “Under this argument, a secret program by the military to put a camera in every American’s bedroom could not be revealed, if to reveal it might harm national security. A secret program by the President to abduct and torture Americans could not be revealed, much less enjoined, if to reveal it might harm national security. This is not some parade of horribles; it is the Government’s position in this case.”