Skip to Content

Government Surveillance

CDT Urges Supreme Court To Review State Secrets Case

On February 18, CDT and New America’s Open Technology Institute asked the U.S. Supreme Court to review a case that was dismissed by the lower courts on the grounds that adjudicating the case would reveal national security information. The case, Jewel v. National Security Agency, challenges the NSA’s bulk collection of internet records in its “Upstream” surveillance program conducted under Section 702 of the Foreign Intelligence Surveillance Act.

The district court dismissed the case citing the state secrets privilege. It asserted that the petitioners’ claims and the government’s defenses could not be adjudicated without revealing classified information that would cause serious harm to national security. The appellate court affirmed that decision without analyzing a single piece of the 1000-page public evidentiary record that the petitioners had assembled.

CDT and OTI argued in their petition to the Supreme Court that given this lengthy public record, unless the Supreme Court intervened, it is doubtful that any case challenging the lawfulness and constitutionality of intelligence surveillance could be heard in the courts. We pointed out that in other contexts, such as in criminal cases involving classified information, courts regularly balance constitutional claims and national security. In this case, however, the lower courts abdicated their critical role in protecting against unconstitutional and unlawful surveillance, we argued. 

This is not the first time CDT has weighed in when a challenge to the NSA’s “Upstream” surveillance program was dismissed on state secrets grounds. We also filed a brief in the Fourth Circuit in Wikimedia v. NSA, which raised this issue. We supported that filing with a CDT report showing that other countries openly acknowledge and describe in some level of detail their own bulk collection activities.

Read the full brief here.