Whether the federal government and the nation's telecommunication companies can be held accountable for allegedly funneling every American's electronic communication to the National Security Agency without warrants is the subject of oral arguments scheduled for a federal appeals court Wednesday.

At issue is a Jan. 31, 2006 lawsuit, and others that followed, alleging violations of the Fourth Amendment right to be free from warrantless searches and seizures. The cases, about three dozen which will be consolidated into two oral arguments, have been thrown out of court on a variety of grounds, chiefly the government's claim that the lawsuits would expose state secrets, and a 2008 law that immunized the nation's telcos from such lawsuits.

Nearly six years later, the merits of the lawsuits have never been addressed. The Electronic Frontier Foundation, which brought the leading cases, appealed, and contends that the litigation should never have been dismissed.

"As far as we know the surveillance is ongoing," says Cindy Cohn, the EFF's legal director, who will be arguing before a three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle. "I think it is tremendously important that Americans not be subject to dragnet surveillance by the government. I think the Fourth Amendment, the right to privacy, is important for this country."

Threat Level will cover the arguments from the courtroom Wednesday afternoon. The hearing is expected to begin at 2:00 p.m. and last at least two hours.

The Obama administration is set to urge the court to let stand the lower-court decisions dismissing the lawsuits. What's more, the government contends, litigation against the government and the telcos must die because it threatens to expose government secrets and undermine national security.

"Congress made a legislative policy judgment that, if litigation of this kind were permitted to proceed, firms that may have assisted the nation at a critical time would be improperly burdened and sensitive classified information might be improperly disclosed," Thomas Bondy, a Justice Department attorney, told the appeals panel in a court brief.

The EFF's allegations are based in part on internal AT&T documents allegedly outlining secret rooms in AT&T offices that route internet traffic to the NSA. Every major telecom carrier in the United States is now named in at least one of the surveillance lawsuits for allegedly cooperating with the government's warrantless surveillance program.

The Bush administration, and now the Obama administration, have neither admitted nor denied the allegations. Instead, they have declared the issue a state secret – one that would undermine the nation’s national security if exposed.

U.S. District Judge Vaughn Walker, the San Francisco judge presiding over the litigation, did not agree. The judge had ruled the allegations against the nation's telcos could proceed.

But a major obstacle stopped the case dead in its tracks, before the merits of the allegations could be litigated, and before the judge could consider ordering a halt to the alleged dragnet, as the EFF is demanding.

That roadblock was an act of Congress, one voted for by then-senator Barack Obama of Illinois, and then signed by President George W. Bush in July 2008. The legislation handed the telcos retroactive immunity from being sued for participating in the surveillance program. That led Judge Walker to toss the case. But EFF contends on appeal that the legislation, which grants the president the power to grant immunity to the telcos, was an unlawful abuse of power.

"It gives a giant scepter to the executive branch to dispense immunity, a civil pardon," Cohn said. "That's the constitutional problem."

That same immunity legislation also approved Bush's once-secret warrantless eavesdropping, which The New York Times disclosed in December 2005.

EFF and others countered the immunity law by naming the government, instead of the telcos, as the defendant. That prompted Obama to invoke the state secrets privilege – despite having announced he would limit his use of that doctrine. Judge Walker wound up dismissing the revised lawsuit as a "general grievance" from the public, and not an actionable claim.

Photo: Mark Klein

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