[This article is part of a series. See “Edward Snowden, the NSA, and the US Courts” and “FISA, the NSA, and America’s Secret Court System.”]
We have seen how the NSA’s phony court system has acted
as a substitute for genuine judicial review, allowing the NSA to build up
precedents purporting to assist its constitutional claims. We have also seen
that the NSA is able to obtain surveillance authorization through
misrepresentations to the court, without any genuine consequence to the agency,
even when discovered. In this Part, we now examine how the NSA shields its
activities from review by the public court system, through the control of
secret information that could be used as evidence against them.
By virtue of having its system of secret courts, the NSA
has been eager to prevent any of its activities coming under scrutiny in the
wider public court system. It has accomplished this goal by appealing to the
public courts to dismiss claims against them prior to any assessment of the
merits of the claim. This has been done by claiming that litigants who seek to
challenge its programs lack standing to sue, and that the matters involve
“state secrets” which cannot be raised in public courts. The former technique
has been particularly successful for the NSA — it has engaged in mass
surveillance while simultaneously relying on the fact that no individual
litigant can prove that they are affected by the surveillance!......To Read
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