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Snowden leaks give new life to lawsuits challenging NSA surveillance programs

Documents Edward Snowden leaked about sweeping NSA surveillance programs have emboldened privacy advocates and government watchdog groups to file a new round of lawsuits challenging the programs' constitutionality.

By Staff writer / July 18, 2013

NSA whistleblower Edward Snowden, an analyst with a US defense contractor, is seen in this still image taken from video during an interview by The Guardian in his hotel room in Hong Kong June 6, 2013.

Glenn Greenwald/Laura Poitras/Courtesy of The Guardian/REUTERS

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Cracks are appearing in a legal wall that since 9/11 has shielded from open-court review the US government’s claim that it has constitutional authority for its secret antiterrorism surveillance programs, some legal experts say.

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Roughly 70 lawsuits have been filed since 2005 alleging that secret US surveillance programs violated someone's constitutional rights, but federal judges have dismissed most of the cases before the merits of the charges were ever heard, these experts say. In particular, plaintiffs have stumbled over the challenge of gaining legal standing to even bring suit against the government, primarily because they could not identify the secret surveillance program that they claimed had harmed them.

But fugitive leaker Edward Snowden, who in June divulged to reporters top-secret documents about two US surveillance programs run by the National Security Agency (NSA), may have provided a way to get around that hurdle, constitutional lawyers say. Since the Snowden leak (and US officials' subsequent confirmation that the documents are real), at least five lawsuits have been filed, the latest on Tuesday, alleging that the NSA program to track all Americans' telephone records violates the US Constitution.

“The fact that people [who are worried about NSA overreach] can now prove these programs exist and can find plaintiffs that, even if not targeted, were at least subjected to surveillance, that’s what’s legally important here,” says Stephen Vladeck, associate professor at American University’s Washington College of Law and a national security law expert. “People can now show that the programs are not just speculation.”

As recently as February, the US Supreme Court in a 5-to-4 decision denied standing to human rights activists who claimed that US surveillance programs made it difficult and costly for them to do their jobs protecting threatened people overseas. The claims merely amounted to a “speculative chain of possibilities,” Justice Samuel Alito wrote for the majority.

Among the new lawsuits challenging the constitutionality of the NSA telephone records “metadata” collection program are one filed by the American Civil Liberties Union in New York, one by a nurse who is also a Verizon Wireless customer, and another by Larry Klayman, founder of the conservative group Judicial Watch. Another suit by Mr. Klayman targets a separate NSA Internet surveillance program called PRISM.

In previous cases, government lawyers managed to prevent courts from considering the constitutional arguments at the center of the complaints, by successfully challenging the plaintiffs' legal standing and by citing the need for secrecy for government surveillance programs.

“The government has used just about every legal tool in their tool kit to prevent the courts from deciding these cases on the merits,” says lawyer Mark Rumold of the Electronic Frontier Foundation (EFF), a digital rights group based in San Francisco that has filed one of new lawsuits. “These procedural maneuvers have precluded courts from actually ruling on the constitutionality of the surveillance programs.”

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