Judge Vaughn Walker had a busy FISA related day yesterday, dismissing one set of lawsuits and refusing administration attempts to--yet again--kill another case via state secrets.
In the first instance, Walker dismissed lawsuits against the telcos, and upheld the telco immunity provisions of FISAAA.
Walker’s decision (.pdf), if it survives, ends more than three years of litigation accusing the nation’s carriers of funneling Americans’ electronic communications to the Bush administration without warrants in the aftermath of the Sept. 11, 2001 terror attacks. The ruling also means that the public may never know how the Bush White House coaxed the telecoms to participate in the program without court warrants, as the Electronic Frontier Foundation alleged in a lawsuit lodged in federal court here three years ago.
"Congress has manifested its unequivocal intention to create an immunity that will shield the telecommunications company defendants from liability in these actions," Walker wrote.
The legislation at issue in the case was crafted after Walker had refused to dismiss the lawsuit the EFF brought in 2006 against AT&T. At the time, Walker’s initial decision allowing the case to go forward was idling on appeal before the San Francisco-based 9th U.S. Circuit Court of Appeals, meaning the merits of the lawsuit have never been addressed. All of the nation’s leading telecommunication companies have been added to the litigation.
On its face, its a real blow to civil libertarians and activists who opposed the warrantless wiretapping program. It provides yet one more data point for the importance of some kind of investigation into the lawlessness of the previous administration. EFF plans to appeal Walker's decision.
But there's a potential silver lining even in Walker's decision, as pointed out by the very smart commenters at Marcy's place. Particularly, see scribe's comment and subsequent discussion on point 2: "He’s made clear that this applies only through 2007 and, since it appears the surveillance continues, that it’s still a live case as to that issue."
The FISAAA provides immunity to telcos up to January 7, 2007. In his ruling, on p. 13, he writes
Moreover, plaintiffs’ alarm about prospective disregard for the Constitution by private entities is largely misplaced given that the immunity for warrantless electronic surveillance under section 802(a)(4) is not available for actions authorized by the president after January 17, 2007, before FISAAA became law.
We know that post-FISAAA, illegal surveillance continued "on a scale that went beyond the broad legal limits established by Congress," and included an effort to illegally wiretap a member of Congress.
Marcy also points to this, at pages 11-12:
The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc #520 at 12. Lest any further reassurance be necessary, the SSCI report states: "The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program."
The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.
In other words, the suits against the telcos are dismissed, the suit against Bush, Jewel, goes forward. There is still potential for discovery of the warrantless wiretapping program via that case.
And the game continues on the Al-Haramain case.
The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of the Obama approach to protecting state secrets.
Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority.
In other words, the administration's efforts to have the case dismissed were again rebuked, and the case goes forward, even without the document that the Obama administration has been trying to conceal. From Daphne Eviatar
That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.
A hearing on the merits of the case — whether the government broke the law when it wiretapped Al-Haramain and its lawyers without a warrant — is scheduled for September 1.
A ruling from Judge Walker last July that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA, does not bode well for the government.
One door on warrantless wiretapping closed, a few more still open.