David Kravets
Security

Justice Department Moving to Immunize Snooping Telcos

Two months ago, President Bush won congressional approval to immunize the nation’s telecommunications companies from lawsuits accusing them of helping Bush funnel Americans’ electronic communications to the National Security Agency without warrants — all in the name of national security following the Sept. 11 terror attacks. But the telecoms, facing 36 lawsuits commingled as one […]

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Two months ago, President Bush won congressional approval to immunize the nation's telecommunications companies from lawsuits accusing them of helping Bush funnel Americans' electronic communications to the National Security Agency without warrants -- all in the name of national security following the Sept. 11 terror attacks.

But the telecoms, facing 36 lawsuits commingled as one in a San Francisco federal court, still haven't been granted immunity in the lawsuits alleging they breached their customers' Fourth Amendment right to privacy. On Friday, however, Justice Department special counsel Anthony Coppolino said the government would comply with the immunity bill's procedural hurdles by Sept. 19 to seek blanket immunity on behalf of the companies.

Whether U.S. District Judge Vaughn Walker would abide by the government's wishes is an open question. Last year, Walker refused to dismiss the cases on other grounds.

"It’s a brand-new statute, hot off the government printing press," Walker said in a hearing Friday.

In response to Coppolino's remarks, Walker set a Dec. 2 hearing, in which he would allow the Electronic Frontier Foundation to challenge the immunity legislation Congress passed July 9 in a bid to keep the lawsuits alive.

It's not the first time the government moved to dismiss the cases. Originally, the government claimed the so-called "state secrets privilege." The privilege generally requires judges to dismiss lawsuits if the government claims they threaten to expose state secrets.

The privilege usually prevails, but Walker ruled against the government and kept the cases alive. The government appealed, but successfully lobbied Congress to adapt legislation as an end-run around Walker's decision.

The EFF said the measure is unconstitutional. In court briefs, they cite five reasons:

They are:

1. Congress violated the separation of powers by attempting to usurp judicial authority to decide the Fourth Amendment claims of millions of ordinary Americans who have been, and continue to be, subjected to dragnet surveillance for the past seven years.

2. Congress exceeded its constitutional authority by passing legislation that grants to the Executive the discretion to essentially dictate the outcome of specific, pending litigation.

3. The statute improperly requires dismissal of claims of illegal surveillance between September 11, 2001 and January 17, 2007 based not on a judicial finding about the facts of the surveillance or the legality or constitutionality of the surveillance, but instead merely based on a 'certification" from the attorney general that some unknown member of the Executive branch told the carriers that some undescribed surveillance is 'lawful.'

4. The legislation denies due process to the plaintiffs by granting to the Executive, rather than the courts, the essential decision making about their constitutional and statutory rights.

5. The legislation purports to grant the Executive a unilateral right to require that the court keep secret not only the evidence, but also its own decisions.

Among other things -- if the legislation stands -- the telecoms are off the hook if the Justice Department can prove, in sealed documents to the court, that the telecoms' assistance was, among other things, the result of a court order; or authorized under the Protect America Act of 2007 or was approved by the president and designed "to detect or prevent a terrorist attack, or in activities in preparation for a terrorist attack, against the United States, and the subject of a written request or directive."

"Here is the latest court document (.pdf) on the long-running case. The exhibit at the end of the document contains the legislation at issue.

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