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Ruling Shows Courts Can’t Pierce Veil of Secrecy Surrounding Surveillance State

WASHINGTON (Aug. 28, 2015) – On Friday, a federal court overturned a lower court decision and quashed a lawsuit brought against an NSA bulk surveillance program by a conservative activist and civil-liberties groups.

The ruling demonstrates the near impossibility of stopping the NSA through legal action.

A three-judge D.C. Circuit Court of Appeals panel determined that the plaintiffs do not have standing to challenge the constitutionality of the program.

The judges held that Larry Klayman and his co-plaintiffs did not demonstrate a “concrete and particularized” injury necessary to sue because they could not prove the NSA spied on them directly.

Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite,” Judge Janice Rogers Brown wrote. “[The plaintiffs] fall short of meeting the higher burden of proof required for a preliminary injunction.”

The decision lifts the injunction against the NSA that was imposed by U.S. District Judge Richard J. Leon in December 2013. The injunction was later stayed pending the appeal.

Leon held that the plaintiffs “demonstrated a substantial likelihood of success” in proving their Fourth Amendment rights were violated by the bulk collection of phone records.

I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval … Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.

Even though the appellate court decision was technical and did not delve into the constitutionality of the program, it reveals the near impossibility of stopping NSA spying through legal action. Because the agency operates in virtual secrecy, Americans have no way of collecting evidence from the government that proves they were individually targeted, and the government will quash any attempt to collect such evidence, citing “national security.”

One can’t establish standing without evidence, and one cannot obtain evidence from a secret spy agency. That places every American trying to prove the NSA targeted them in a legal Catch 22. In fact, the mantra of “national security” creates an impenetrable veil allowing the NSA and other federal agencies to violate your rights under the cover of darkness with impunity.

Consider this: we would not have ever known about bulk collection of Americans’ phone records had whistleblower Edward Snowden not released documents describing the program.

Legal wrangling will never pierce the NSA veil of secrecy, and federal courts will almost always ultimately side with the federal government when it comes to the exercise of federal power – especially when the government pulls its “national security” card.

Washington D.C. will never rein in Washington D.C. Stopping warrantless surveillance will require action and power outside of the Beltway.  We can rain in the NSA through state and local action.

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