New NSA Spying Decision Undermines Arguments for Telecom Immunity

Today, Chief Judge Vaughn Walker of the Northern District of California, issued an opinion in Al Haramain v. Bush, one of the cases challenging the NSA warrantless wiretapping program. The Court found that the Foreign Intelligence Surveillance Act (FISA) preempted the state secret privilege. This important decision is particularly timely, as it undermines key arguments for telecom immunity on the eve of the Senate vote on a FISA bill, set for next week.

The Court's Holding

The Al Haramain case alleges that the Bush Administration illegally targeted the leaders of an Islamic charity and their lawyers for warrantless surveillance by the NSA. Their claims are based on a secret document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates they were subjected to warrantless wiretapping (the contents of the document are tightly sealed as a state secret).

In today's decision, Judge Walker dismissed the Al Haramain case for the time being, but gave the plaintiffs leave to amend their complaint to assert more facts. This was the government's second attempt to dismiss the Al-Haramain case. The first motion to dismiss reached the Ninth Circuit Court of Appeals, which returned the case to Judge Walker's court to consider whether FISA preempted the government's claim to secrecy.

The good news is that the Court held that "FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims." The Court rejected the expansive view of executive power promoted by the government, holding that the President's authorities under Article II of the Constitution do not give him the power to overrule FISA.

The bad news is that "FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are 'aggrieved persons' within the meaning of FISA." The Court ultimately found that Al Haramain had not provided a sufficient showing that they were "aggrieved," but gave permission to re-file the complaint with more information.

Decision Undermines Telecom Immunity Arguments

While the case only directly addressed the Al Haramain case, Judge Walker did mention the cases against the telecommunications giants who participated in the illegal surveillance program:

Plaintiff amici [i.e. EFF and others] hint at the proper showing when they refer to “independent evidence disclosing that plaintiffs have been surveilled” and a “rich lode of disclosure to support their claims” in various of the [NSA spying] cases.

Accordingly, so long as the telecom plaintiffs have unclassified evidence tending to establish that they were surveilled--which exists, for example, in Hepting v. AT&T, via AT&T documents provided by whistleblower Mark Klein--FISA's procedures kick into effect and the Bush Administration cannot unilaterally get rid of the telecom cases pursuant to the state secret privilege.

Moreover, this ruling would allow the telecoms to present their defenses. A major talking point for telecom apologists is that the the telcos were unfairly prevented from mounting a defense by the state secret privilege. By holding that FISA's existing evidence security procedures preempt the state secrets privilege, the decision belies telecom immunity proponents' claims that the litigation was unfair because the privilege prevented the telecoms from defending themselves. It also refutes claims that the lawsuits against the telecoms weren't going to go anywhere anyway.

Yet, even as the prospects for accountability from the telecoms grow brighter with this decision, Congress is poised to prevent the courts from doing their job by unjustifiably granting immunity to these companies that violated the rights of millions.

Call your Senators today, and ask them to vote against retroactive immunity for law breaking telecommunications companies.