A federal judge in San Francisco has tossed out a slew of lawsuits filed against AT&T and other telecommunications companies alleged to have illegally opened their networks to the National Security Agency.
U.S. District Judge Vaughn Walker on Wednesday ruled that, thanks to a 2008 federal law retroactively immunizing those companies, approximately 46 lawsuits brought by civil liberties groups and class action lawyers will be dismissed.
Congress has created a "'focused immunity' for private entities who assisted the government with activities that allegedly violated plaintiffs' constitutional rights," Walker wrote in a 46-page opinion. That has not, he said, "affected plaintiffs' underlying constitutional rights."
Wednesday's ruling is a bitter defeat to groups including the Electronic Frontier Foundation and the American Civil Liberties Union, which are coordinating the lawsuits over warrantless wiretapping. They had hoped to convince the judge that the law improperly infringed upon the separation of powers described in the U.S. Constitution and handed too much power to the executive branch.
The 2008 law, called the Foreign Intelligence Surveillance Amendments Act, was approved by a Democratic-controlled Congress last summer. As a senator, President Obama voted for the measure even though he had previously pledged to oppose it.
It says that no "civil action" may take place in state or federal court "against any person for providing assistance to an element of the intelligence community"--and will be automatically dismissed as long as the attorney general claims the surveillance was authorized.
Former Attorney General Michael Mukasey sent the court a letter saying the surveillance was authorized, but without offering any further information. The Justice Department under President Obama has not changed its position.
EFF said it would appeal to the 9th Circuit Court of Appeals. "We're deeply disappointed in Judge Walker's ruling today," EFF Legal Director Cindy Cohn said in a statement. "The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."
The ruling does not affect lawsuits that have been filed directly against the NSA or other government agencies, including the EFF's Jewel v. NSA case. (A congressional report accompanying the 2008 law explicitly says: "Nothing in this bill is intended to affect these suits against the government or individual government officials.")
Walker left one possible opening for EFF, ACLU, and their allies. Because the 2008 law exempts surveillance "authorized by the president" during the time from September 11, 2001 and January 17, 2007, telecom firms could be held liable if they surreptitiously cooperated with NSA or other agencies more recently.
He gave the plaintiffs 30 days to amend their complaint to focus on surveillance that took place after January 17, 2007, the date that President Bush decided to amend the program to include supervision by courts.
The National Security Agency tried to wiretap a member of the U.S. Congress without a warrant, and has engaged in "significant and systemic" illegal surveillance activities in the last few months including e-mail and telephone call interceptions, according to a report this week.
The article in Wednesday's New York Times said the Obama administration acknowledged there had been abuses but said they had been resolved. The attempted eavesdropping on a congressman came about because he or she was part of a delegation to the Middle East in 2005 or 2006, and was ultimately blocked.
The NSA said in a statement on Wednesday that "intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations."
The Times reported, without giving details, that the "overcollection" problems were discovered as part of a twice-a-year certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court.
Salon.com columnist Glenn Greenwald wrote on Thursday that it was "inevitable" that more NSA surveillance abuses would happen after the Democratic-controlled Congress approved legislation in 2008 that eliminated safeguards and blessed surveillance activities that would otherwise have been illegal.
Greenwald wrote: "That was the purpose of the law: to gut the safeguards in place since the 1978 passage of FISA, destroy the crux of the oversight regime over executive surveillance of Americans, and enable and empower unchecked government spying activities." (FISA is the Foreign Intelligence Surveillance Act.)
At the time, in June 2008, the ACLU highlighted a long list of concerns including "loopholes" in the bill to rewrite FISA. Presidential candidate Barack Obama supported the FISA bill--which also granted retroactive immunity to telecommunications companies that illegally opened their networks to the NSA--saying it has "appropriate safeguards."
A secret federal appeals court has ruled that federal agencies can be authorized to conduct warrantless e-mail and telephone surveillance without violating the U.S. Constitution.
In a 29-page redacted opinion (PDF) released Thursday, the court ruled that presidents do not need to obtain warrants to conduct "foreign intelligence for national-security purposes"--which is effectively at least a partial endorsement of President Bush's views on expansive executive powers.
The central question in this case was how the Fourth Amendment's prohibition on "unreasonable searches and seizures" applies to intelligence agencies wishing to compel AT&T and other providers to open their networks to federal snoops hoping to listen in on international communications.
The U.S. Foreign Intelligence Surveillance Court of Review concluded that as long as the executive branch has "several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts."
The case arose because an unnamed telecommunications company believed that a now-lapsed surveillance law was unconstitutional and challenged it in the secret court.
Also on Thursday, Attorney General-designate Eric Holder was answering questions about warrantless wiretapping during his Senate confirmation hearing. Holder indicated that he would seek curbs on such National Security Agency programs.
Orders of the secret appeals court, which meets behind closed doors, are a rarity. (An earlier opinion, also siding with the Bush administration, was released in November 2002. The original classified, unredacted version of Thursday's opinion was finished in August 2008.)
That's because the Foreign Intelligence Surveillance Court typically hears only from one side--lawyers from the U.S. Department of Justice--and appeals happen only when the requests are denied. More than two decades went by without any appeals taking place.
The FISC appeals court's ruling is more important for what it says about its view of the Fourth Amendment than what it says about the particular statute in question, the Protect America Act.
The August 2007 law expanded the Foreign Intelligence Information Act and allowed warrantless eavesdropping on people "reasonably believed" to be outside the United States. It permitted the attorney general and the director of national intelligence to issue directives--valid for one year--to force communications providers to open their networks for that purpose.
By February 16, 2008, the Protect America Act had sunset, and was eventually repealed and revised in July 2008. But the directives issued during that time were still in effect, which led to the court challenge.
The Justice Department on Thursday said it "is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007."
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