Tuesday, December 2, 2008

Courtroom Showdown - Bush Demands Amnesty for Spying Telecoms

When it comes to the issue of privacy and the US Constitution it just doesn't get much bigger than this.

As I write this, lawyers for the Bush administration are attempting to "to convince a federal judge to let stand a law granting retroactive legal immunity to the nation's telecommunications firms, which are accused of transmitting Americans' private communications to the National Security Agency without warrants."

The court battle centers on "nearly four dozen lawsuits filed by civil liberties groups and class action attorneys against AT&T, Verizon, MCI, Sprint and other carriers who allegedly cooperated with the Bush administration's domestic surveillance program in the years following the Sept. 11 terror attacks," Threat Level explains. Among the groups filing suit is the Electronic Frontier Foundation, which argues that the FISA Amendments Act -- granting retroactive immunity at the discretion of the Attorney General by allowing for "the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program" -- is unconstitutional.

One bright spot is that Judge Vaughn Walker announced yesterday that he planned to discuss a series of 11 questions during today's hearing, including whether or not there exists "any precedent" for the powers granted to the Attorney General by the FISA Amendments Act. FireDogLake's Marcy Wheeler says that Walker's questions "suggest that Walker is not going to simply roll over and abdicate his Article III function."

Wired Magazine has more:

In July, as part of a wider domestic spying bill, Congress voted to kill the lawsuits and grant retroactive amnesty to any phone companies that helped with the surveillance; President-elect Barack Obama was among those who voted for the law in the Senate.


Carl Tobias, a professor at the University of Richmond School of Law, says the immunity legislation, if upheld, "makes it possible to extend immunity to other areas of the law." He agreed, for example, that it would not be far-fetched to imagine Congress immunizing ExxonMobil for the 1989 Valdez oil spill "for national security reasons." A jury awarded about $5 billion in punitive damages in that case, an amount the courts reduced to $500 million.


The EFF's case, which has been consolidated with the others in the U.S. District Court of San Francisco, includes so-called whistle-blower documents from a former AT&T technician. The EFF claims the documents describe a secret room in an AT&T building in San Francisco that is wired to share raw internet traffic with the NSA.

The government sought to dismiss the original EFF case, and others that followed, on the grounds that they threatened to expose state secrets. Judge Walker has ruled against the government, saying the case could proceed. The government appealed. But before the appeal was decided, Congress on July 9 gave the president the power to grant immunity to the carriers.

The EFF is now challenging the immunity legislation on the grounds that it seeks to circumvent the Constitution's separation of powers clause, as well as Americans' Fourth Amendment rights against unreasonable searches and seizures.

You can be sure I'll be following this case and reporting back on it here until its resolved. Click here to read more.

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