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EFF to sue Bush, Cheney, NSA and others over telecom spying

Internet watchdog group takes only road available

By Paul McNamara on Thu, 09/18/08 - 9:23am.

The government has decreed that they can't sue the phone companies over illegal spying on Americans, so instead they're about sue the government.

(2011's 25 Geekiest 25th Anniversaries) 

From an Electronic Frontier Foundation press alert just received here:

The Electronic Frontier Foundation (EFF) will file a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records.

The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

A press conference is scheduled for 1:30 p.m. (Update: More from the press release is at the bottom of this post.)

The ACLU filed its own challenge shortly after Congress voted to grant retroactive immunity to carriers who were being sued for their roles in the illegal spying. President Bush signed the Foreign Intelligence Surveillance Act (FISA) Amendments Act in July, although cases predating that legislation have continued to wind their way through the courts.

From an Ars Technica story earlier this week:

Attorneys for the Electronic Frontier Foundation had hoped to immediately challenge the constitutionality of the immunity provision of the FISA Amendments Act. While it remains to be seen what approach EFF will take, some legal scholars have argued that retroactively voiding a vested legal claim runs afoul of the Fifth Amendment's Takings Clause, which bars the government from depriving people of property without just compensation. Absent the immunity legislation, customers whose private information was compromised could be collectively due billions in damages. In statements to press after the hearing, EFF attorney Cindy Cohn also hinted that there might be a separation of powers argument waiting in the wings.

I wish I could be more confident that these efforts will bring justice to a situation that has to date seen none. But I'm afraid that is extraordinarily unlikely ... at least until there has been a change in administrations.

Update, 1:30: Here's more from the press release:

The lawsuit, Jewel v. NSA, is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

That same evidence is central to Hepting v. AT&T, a class-action lawsuit filed by EFF in 2006 to stop the telecom giant's participation in the illegal surveillance program. Earlier this year, Congress passed a law attempting to derail that case by unconstitutionally granting immunity to AT&T and other companies that took part in the dragnet. Hepting v. AT&T is now stalled in federal court while EFF argues with the government over whether the immunity is constitutional and applies in that case -- litigation that is likely to continue well into 2009.

"In addition to suing AT&T, we've now opened a second front in the battle to stop the NSA's illegal surveillance of millions of ordinary Americans and hold personally responsible those who authorized or participated in the spying program," said Senior Staff Attorney Kevin Bankston. "For years, the NSA has been engaged in a massive and massively illegal fishing expedition through AT&T's domestic networks and databases of customer records. Our goal in this new case against the government, as in our case against AT&T, is to dismantle this dragnet surveillance program as soon as possible."

In addition to suing the government agencies involved in the domestic dragnet, the lawsuit also targets the individuals responsible for creating, authorizing, and implementing the illegal program, including President Bush and Vice President Cheney.

"Demanding personal accountability from President Bush, Vice President Cheney and others responsible for the NSA's dragnet surveillance of ordinary Americans' communications is the best way to guarantee that such blatantly illegal spying will not be authorized in the future," said EFF Legal Director Cindy Cohn. "Our lawsuit today should sound a clear warning to future occupants of the White House: if you break the law and violate Americans' privacy, there will be consequences."

For the full complaint in Jewel v. NSA:
http://www.eff.org/files/filenode/jewel/jewel.complaint.pdf

For more on the case:
http://www.eff.org/cases/jewel

More updates to come later as warranted.

(Update 2: Cory Doctorow at makes the point at BoingBoing that EFF cannot do this type of important work without support from people like you.)

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