New Federal Wiretap Law Granting Phone Companies Retroactive Immunity Challenged in Court
Bob Egelko, San Francisco Chronicle October 18, 2008
Civil liberties groups started a legal challenge Friday to the new federal law designed to dismiss their wiretapping suits against telecommunications companies, saying the statute violates phone customers’ constitutional rights and tramples on judicial authority.
The law, passed in July, granted retroactive protection to AT&T, Verizon and other companies against lawsuits accusing them of illegally sharing their telephone and e-mail networks and millions of customer records with the National Security Agency. The NSA began monitoring Americans’ communications with alleged foreign terrorists, without court warrants, after the Sept. 11, 2001, terrorist attacks.
Almost 40 such suits from around the nation are pending before Chief U.S. District Judge Vaughn Walker in San Francisco. The law requires him to dismiss the cases if the Justice Department tells him the companies had cooperated in a surveillance program authorized by President Bush to prevent a terrorist attack, or that they had no role at all.
To conceal each company’s alleged participation, details of the department’s filing and the judge’s dismissal order are to be kept secret. The department submitted its filing Sept. 19, publicly releasing only a declaration by Attorney General Michael Mukasey saying the suits should be dismissed for reasons specified in the law.
In papers filed with Walker, the American Civil Liberties Union and the Electronic Frontier Foundation attacked the secrecy requirements and argued that Congress and President Bush lack authority to order courts to whitewash constitutional violations.
“If Congress can give the executive the power to exclude the judiciary from considering the constitutional claims of millions of Americans … then the judiciary will no longer be functioning as a coequal branch of government,” Cindy Cohn, the foundation’s legal director, said in court papers.
She said the law reduces judicial review to a “puppet show” by requiring the courts to accept the government’s factual claims and legal justification without further inquiry.
Cohn also argued that the customers, whose suits claim violations of their privacy, have a right to learn the Justice Department’s reasons for seeking dismissals so that their lawyers can oppose them. She said the law’s secrecy makes the proceedings one-sided.
“Due process requires more than the chance to shadow-box with the government,” Cohn wrote.
Walker has scheduled a hearing Dec. 2 on the government’s request to dismiss the suits. He is also considering whether to revive the only other suit over the surveillance program, filed by an Islamic charity that said it learned it had been wiretapped in a secret document that the government inadvertently provided.
Walker dismissed that suit in July, saying the Al-Haramain Islamic Foundation – a now-defunct organization that was on the U.S. government’s terrorist list – could not rely on the secret document to show that it had been a target of surveillance and had legal standing to challenge the program.
But he said he would reinstate the case if Al-Haramain could prove the same point with publicly available evidence. The organization’s lawyer says a speech by a deputy FBI director a year ago acknowledged that Al-Haramain had been under surveillance.