This weekend, the US government filed documents in two long-running cases (both in California's Northern District) related to National Security Agency (NSA) surveillance. As the New York Times notes, these filings mark the first time the government acknowledged that the NSA "started systematically collecting data about Americans’ e-mails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants." However, the bigger takeaway from the new documents is that the government continues to evoke state secrets privilege—the right to prevent certain, potentially harmful information from being used in court even if it means a case might be dismissed—despite previous rulings against this argument.

"The government seems to be trying to reset the clock to before June 2013 or even December 2005," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn in a statement. "But the American people know that their communications are being swept up by the government under various NSA programs. The government's attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing."

As the EFF notes, government surveillance activities are discussed publicly by media outlets worldwide and even acknowledged in official presidential press conferences. Despite that, the government's state secrets defense argues that potential documents, which relate to the EFF's claims that the "NSA indiscriminately intercepts the content of communications and their claims regarding the NSA's bulk collection of... metadata," still contain viable state secrets.

“Disclosing or confirming further details about these activities could seriously undermine an important tool—metadata collection and analysis—for tracking possible terrorist plots,” Director of National Intelligence James R. Clapper Jr. wrote in a brief with the filing. Clapper claimed that tactics could be revealed that would “help foreign adversaries evade detection.”

In Jewel v. NSA, a judge ruled against the state secrets claim back in July—before the Snowden revelations. And the new documents available for this case—covering now familiar Al Qaeda threats from 2005, 2006, and 2010 according to NYT—were only released because of a court order from September. Back then, the EFF scored a small victory in the long-running case when Judge Jeffrey S. White ordered the government to unseal declassified materials relevant to NSA surveillance before December 20. The documents included things like exhibits, declarations, and other ex parte submissions, all originally submitted to the court under seal.

Jewel v. NSA dates back to 2008, and it's still proceeding despite plenty of stops and starts. The EFF identifies the fundamental question in the case as "whether the spying program is legal and constitutional." After its filing in 2008, the government moved to dismiss the case in 2009, a judge in the Northern District of California agreed in 2010, but the Ninth Circuit US Court of Appeals eventually reinstated the case in 2011. The government renewed its attempts to dismiss Jewel v. NSA in 2012, but that argument was rejected earlier this year.