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Article posted Jun 08 2012, 11:40 AM Category: Big Brother/Orwellian Source: Print

US Government Still Insisting It Can't Be Sued Over Warrantless Wiretapping

BY TREVOR TIMM, Electronic Frontier Foundation

Once again, the federal government is trying its hardest to prevent the courts from determining whether it has broken (or is still breaking) the law through the NSA's wiretapping program.

For nearly four years, the Obama Administration has followed in the Bush administration's footsteps, invoking national security and a variety of procedural hurdles to shield itself from accountability in courts. In three separate lawsuits that have been churning in the federal courts, the government has used a menu of dodges to block the courts from considering the key underlying question -- have they been breaking the law and violating the constitution by warrantlessly surveilling American citizens -- over and over again. 

And now the Obama Administration wants Congress to extend the broader surveillance powers passed by Congress in 2008.

Al-Haramain v. Obama

The latest example occurred last Friday, in a hearing before the 9th Circuit Court of Appeals in Pasadena, CA during a government appeal of the long running case al-Haramain v. Obama. In 2009, a federal court awarded the two plaintiffs--American lawyers who represented the now defunct Islamic charity, al-Haramain--$20,000 each and $2.5 million in legal fees, in what remains the only warrantless wiretapping case decided on the merits.

The plaintiffs in al-Haramain originally filed suit when the government accidentally provided them with a classified document that showed they had been subject to warrantless surveillance. Despite the government convincing the court to declare the document a "state secret" and exclude it from evidence, Judge Walker granted judgment in favor of al-Haramain based solely on publicly available evidence.

Yet on appeal, as Wired's David Kravets reported, DOJ claims the court should dismiss the case outright because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as "sovereign immunity." Sovereign immunity generally prevents the federal government from being sued unless an act of Congress authorizes it. Through it's a complex, technical argument, the government is essentially asserting the only way to hold anyone accountable for future illegal national security wiretapping is to sue them in their individual capacities (and apparently requiring them to pay any damages out of their own pocket).  Given that the FISA was written in the midst of the uproar over rampant official government surveillance, this outcome would be outrageous. 

And even assuming the government wins on its argument, would it then let the case go forward against FBI Director Robert Mueller, the one federal official named in his individual capacity? No way. After a question from one judge, the government admitted to the Court that it would then invoke the "state secrets" privilege to stop even that case and also raised the specter of other immunities that would then apply to protect the individual defendants. The Justice Department essentially told the Court, "heads we win, tails they lose."

The fact remains that the district court sided with plaintiffs -- holding that FISA waives sovereign immunity, has national security protective procedures that overwrite the  state secret privilege here, and that plaintiffs had established a case, based purely on publicly available evidence, to satisfy their burden. We hope the 9th Circuit agrees.

Jewel v. NSA and Hepting v. AT&T

The state secrets privilege is also the first legal maneuver the government will likely try to use to prevent EFF's own lawsuit against the government over warrantless wiretapping, Jewel v. NSA. In Jewel, based on evidence given to EFF by AT&T whistleblower Mark Klein, Congressional admissions, and countless media investigations, EFF has argued the NSA violated federal surveillance laws and the Constitution by acquiring untold numbers of Americans' emails, phone calls, and communications records.

After a recent procedural victory at the 9th Circuit revived the case, Jewel is back before a federal district judge in San Francisco. However, in proceedings over the next few months, the government will likely try to again wall itself off from accountability by asserting that the state secrets privilege requires the case to be dismissed without a determination of whether the government's actions are legal. Yet, in passing FISA, Congress expressly created a secure process by which the legality of surveillance must be determined by a court. We expect the next round of the fight will be, as previous ones were, a set of arguments by the government about why, despite that carefully considered (and never amended) process, the case should still be dismissed immediately regardless of whether the government is actually illegally surveiling millions of Americans.

Separately, in March, EFF filed a petition asking the Supreme Court (pdf) to hear Hepting v. AT&T -- EFF's lawsuit against AT&T for their role in the government's warrantless surveillance program, where the companies and the Executive branch strong-armed Congress into granting the President the right to dismiss cases against the telecom companies. The government has asked for several extensions to reply to EFF's petition, but the Supreme Court will likely decide whether or not it will hear the case by this Fall. 

Amnesty International v. Clapper

The ACLU is also challenging the legality of the FISA Amendments Act -- the 2008 law which broadly expanded the government's spying powers -- in a separate suit, Amnesty International v. Clapper. Two weeks ago, the Supreme Court agreed to hear that case after the government appealled an appeals court decision ruling in the ACLU's favor.

The government has argued that the case should be dismissed completely on yet another procedural argument. It claims that because plaintiffs--a group of lawyers, journalists and human rights activists who reasonably expect their emails are being unconstitutionally monitored--don't have "standing." Like the government's sovereign immunity argument in al-Haramain, the government is using a catch-22 argument in Amnesty: they say that plaintiffs have to prove they're being monitored under the program for the suit even to begin, but, simultaneously, the only way they can prove this is if the government intentionally admits that it is surveilling them.  Since the government refusing to admit or deny the surveillance, plaintiffs cannot have standing to decide whether the surveillance is legal or, more importantly, to stop it. 

Despite the government's arguments, the Second Circuit held that plaintiffs had established standing to sue based on their reasonable belief that they are being surveilled and the chilling affect that this illegal surveillance has on their communications. We hope the Supreme Court agrees.  

President Obama and FISA Amendments Act Renewal

What makes the administration's stances in these cases particularly heartbreaking is that Senator and then candidate Obama was a vocal critic of warrantless wiretapping, yet once in office has chosen to reverse himself on all counts. Even before he was elected, he reneged on his promise to filibuster telecom immunity in the FISA Amendments Act in the midst of a presidential race. As a candidate, he also promised to curtail the use of the "state secret" privilege, only to turn around and claim it in all of  the wiretapping cases --along with many other lawsuits alleging constitutional violations.

All this serves as a backdrop to the current debate about whether portions of the FISA Amendments Act should be renewed by Congress when it expires at the end of the year. As we reported, a House Judiciary Committee recently held a hearing on the subject, where witnesses and members of Congress alike pointed to the fact that the law appears to allow for dragnet surveillance of Americans' phone calls and emails without a warrant, something that has never been held to be constitutional by any court.

Unfortunately, Obama, who once insisted he would reform the law in the name of civil liberties as president--even after voting for it--has gone back on that promise as well. Renewing the Act with no changes is now his administration's "top priority," even as he continues his aggressive resistance to any judicial review.

It will be EFF's top priority to oppose it.

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