Feds to Judge: Don’t ‘Second Guess’ Bush Domestic Spy Program

By David Kravets

The Bush administration on Tuesday urged a federal judge to dismiss lawsuits against the nation’s telecommunications companies accused of complying with the government’s once-secret spy program adopted in the wake of the 2001 terror attacks on the United States.

“That was designed to protect from a terrorist attack,” Deputy Assistant Attorney General Carl Nichols told U.S. District Judge Vaughn Walker.

Walker was hearing oral arguments on whether to uphold legislation barring lawsuits against the telecoms for violating Americans’ privacy if they forwarded electronic communications to the government. “I don’t think it would be appropriate for this court to look back and second-guess the administration,” Nichols added.

In July, Congress passed legislation immunizing the telecoms from lawsuits brought by the Electronic Frontier Foundation, the American Civil Liberties Union and others accusing the companies of funneling electronic communications to the National Security Agency without warrants. The government has neither directly confirmed nor denied the allegations, but Bush in late 2005 acknowledged a limited warrantless spy program of eavesdropping on Americans’ international phone calls and e-mails.

Still, Walker was concerned that the immunity law, which also authorized continuing the admitted eavesdropping, gives the attorney general too much power.

“It gives the attorney general carte blanche to immunize anyone who in his judgment or view should be immunized from possible liability,” Walker said from the bench.

President-elect Barack Obama was among the majority in the Senate voting for the immunity provision in July, as part of a broader domestic spying bill. At the close of a two-hour hearing here, Walker did not say when he would rule.

Richard Wiebe, an EFF attorney, said the immunity provision allowed for a Justice Department “camouflage” or a “smokescreen,” adding that it’s inherently unconstitutional to immunize unconstitutional behavior.

He said the companies should face lawsuits for what he termed “mass unwarranted surveillance.”

“Congress recognized these cases created a risk to national security,” Nichols countered. “Congress has spoken.”

At several points during the nearly two-hour hearing, Walker appeared to agree with the government. He noted that Congress often strips judges of their power to hear cases, like in 2005 when Congress immunized gun manufacturers from liability. He told Wiebe his complaint should be made with Congress.

“I’m the wrong person to be making that argument to,” Walker said.

Walker also wondered aloud whether he should decide the case before the Obama administration takes office in January.

“It would be very, very unlikely for any future Department of Justice to decline to defend the constitutionality of the statute,” replied Nichols, who conceded the law was unprecedented.

Congress passed the immunity measure after Walker dismissed the government’s claim that the lawsuits against AT&T, Sprint and others filed in 2006 should be dismissed because they threatened to expose state secrets. Walker’s decision was on appeal to the San Francisco-based 9th U.S. Circuit Court of Appeals when lawmakers passed the immunity measure. The appeals court, noting the legislation, dismissed the appeal as moot.

Assuming for the sake of argument the carriers and the government engaged in illegal eavesdropping, Walker wondered aloud what would be wrong with the litigation being solely directed at the government.

“Let’s assume that’s exactly what happened. Then why shouldn’t the government just be on the hook for any harm or damage?” Walker asked.

Cindy Cohn, the EFF’s legal director, replied that the 9th Circuit could still throw out the cases against the government under the State Secrets Privilege. In any event, she said, the telecoms should be held responsible. “Carriers have an independent duty to protect their customers.”