The Washington Post reports: The recent disclosure of U.S. surveillance methods is providing opponents of classified programs with new openings to challenge their constitutionality, according to civil libertarians and some legal experts.
At least five cases have been filed in federal courts since the government’s widespread collection of telephone and Internet records was revealed last month. The lawsuits primarily target a program that scoops up the telephone records of millions of Americans from U.S. telecommunications companies.
Such cases face formidable obstacles. The government tends to fiercely resist them on national security grounds, and the surveillance is so secret that it’s hard to prove who was targeted. Nearly all of the roughly 70 suits filed after the George W. Bush administration’s warrantless wiretapping was disclosed in 2005 have been dismissed.
But the legal landscape may be shifting, lawyers say, because the revelations by Edward Snowden, a former National Security Agency contractor and the principal source of the leaks, forced the government to acknowledge the programs and discuss them. That, they say, could help plaintiffs overcome government arguments that they lack the legal standing to sue or that cases should be thrown out because the programs are state secrets. A federal judge in California last week rejected the government’s argument that an earlier lawsuit over NSA surveillance should be dismissed on secrecy grounds.
“There is one critical difference from the Bush era. We now have indisputable physical evidence that the conduct being challenged is actually taking place,’’ said Stephen Vladeck, an expert on national security law at American University law school. He said Snowden’s disclosures make it “more likely” that cases will at least be allowed to go forward in court, leading to a years-long legal battle over surveillance and privacy. [Continue reading…]