Wiretap Cases a Go Despite FISA Change

By Evan Hill | Though Congress put a damper this summer on legal efforts to prove the Bush administration unlawfully spied on Americans’ phone calls and e-mails, flagship litigation in the Northern District of California will still proceed.

Chief Judge Vaughn Walker laid out a briefing schedule at a hearing Friday for In re National Security Agency Telecommunications Records Litigation, MDL 06-1791 — the consolidated suits against the government and numerous telecommunications giants like AT&T, Verizon and Sprint.

Walker first made quick work of the scheduling for Al-Haramain Islamic Foundation v. Bush and granted the Islamic charity the opportunity to file a motion arguing that it’s an “aggrieved party” under the Foreign Intelligence Surveillance Act, a status that would allow Walker to use classified evidence of government spying to determine if illegal surveillance had occurred.

Al-Haramain’s lawyers say that the government, in the course of investigating the charity, accidentally turned over documents showing they had spied on the organization. Walker has thus far precluded any use of the classified document, but FISA provides for the review and introduction of such evidence.

Walker set a Sept. 23 deadline for Al-Haramain’s motion and the government’s motion to dismiss.

But Walker wasn’t as brief or generous to the plaintiffs in the cases against telecom companies, which represent the other half of the consolidated wiretapping litigation.

Over the arguments of Electronic Frontier Foundation Legal Director Cindy Cohn, co-lead plaintiffs counsel, Walker denied a request to challenge the constitutionality of the recently passed amendments to FISA, which give telecoms retroactive immunity. Walker decided the government should get a chance to argue, by Sept. 19, for the cases to be dismissed before a constitutional challenge is raised.

“I do think we need first to see if the [FISA Amendments Act of 2008] applies to these cases, to let the government make its presentation in that regard … and then decide how the cases are to proceed, if at all,” he said.

Walker also denied Cohn’s request to be given more discovery about the extent to which telecom companies helped the government monitor communications.

Lawyers for the government and the companies, in a joint case management statement, argued that “Congress did not intend to open the door to discovery” but rather “to provide a means to resolve these cases without compromising classified national security information.”

Justice Department attorney Anthony Coppolino indicated that for both Al-Haramain and the telecom cases he would likely continue to introduce much of his evidence, which he has said is classified, under seal for in camera review.

Walker said he’d prefer to see less of that.

“The classified materials that I have viewed in connection with the state secrets issue … frankly have not been very helpful in resolving the issues that I have had to resolve,” he said.

He told Coppolino that it “behooved” him to be sparing when he submits classified materials.

Friday’s hearing was the first in the consolidated wiretapping cases to occur in the wake of President Bush’s signing of the FISA Amendments Act on July 10.

Outside court, Cohn said that the plaintiffs’ strategy going forward will be two-pronged: To argue that the government collected information in a broader fashion than was allowed under FISA and that the FISA Amendments Act is unconstitutional because it grants the executive branch power to usurp the judiciary.

Though the briefing schedule in the cases might be set, the outcomes, shrouded in new law, remain anything but clear.

“I cannot say that I have great familiarity with the statute,” Walker said of the FISA Amendments Act, “and indeed it’s a new statute and an unusual one providing for an unusual procedure.”