Feds Insist That As Long As They Break The Law In A 'Classified' Way, They Can Never Be Sued

from the please-explain-how-that-works dept

The EFF has been involved in a series of lawsuits against the government and telcos concerning the almost certainly illegal warrantless wiretapping program that the US has been using for many years, which was exposed by the NY Times and Wired a few years back. The US government more or less admitted what it was doing was entirely illegal when it passed new legislation that (a) tried to make the warrantless wiretapping legal and (b) granted telcos retroactive immunity from any lawsuits for helping the government. Because of these things -- along with the US's insistence that these lawsuits would reveal state secrets -- all of the lawsuits have been dismissed. However, the 9th Circuit appeals court is now considering restating them after an appeal via the EFF.

What's pretty stunning about the federal government's position is that it seems so farcical on its face. It seems to be claiming that (1) as long as the government breaks the law in a classified way, that can never be subject to litigation and (2) if lawsuits concerning illegal activity would be a burden on those who participated in the illegal activity, then such lawsuits should not be allowed. I'm not kidding. A couple of quotes:
“Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,” Kellogg said.

Department of Justice Attorney Thomas Bondy urged the panel of judges to abide by Congress’ wishes. He repeated over and again that litigating the allegations would expose national security secrets.

“Who was or who was not surveilled, that’s classified,” he said. “What any particular carrier did or did not do, that’s all classified.”
But combine those two things and you're basically saying the government has full impunity to do whatever the hell it wants and can never face any legal consequences. On top of that, those who help the government can never face legal consequences either. How does that possibly make sense? It appears that at least two of the judges on the three judge panel had significant concerns about this:
Judge Michael Daly Hawkins wondered aloud, “If these plaintiff’s don’t have standing, who would?” Judge M. Margaret McKeown said the “concern” she had was that the suits’ dismissal “cuts off the plaintiffs … from ever pursuing a claim.”
But, those random musings aren't necessarily indicative of how the court will rule. I am hopeful they realize the plainly ridiculous state of the government simply being able to hide any illegal activity behind a claim that "it's classified," and will allow at least some of these cases to go forward.


Reader Comments (rss)

(Flattened / Threaded)

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    The eejit (profile), Sep 1st, 2011 @ 12:38pm

    Maybe these guys should attend the Kindergarten party organised for earlier today.

     

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    :Lobo Santo (profile), Sep 1st, 2011 @ 1:16pm

    Years, man!!

    I've been saying it for years: It's only illegal if you get caught.

     

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      Anonymous Coward, Sep 1st, 2011 @ 1:22pm

      Re: Years, man!!

      And once you are caught, now you can say... if you try to sue me then all of this stuff that WE classified will be given to the enemy and a lot of scary bad stuff will happen. So, we are actually doing you a favor by not letting you sue us. Please shut the fuck up and gives us more money so we can continue to keep you safe.

       

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      Dark Helmet (profile), Sep 1st, 2011 @ 1:22pm

      Re: Years, man!!

      Yeah, but now it's even better, because they're asking to make it illegal to catch people.

      Fucking brilliant, these subhuman ass-trumpets....

       

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    PrometheeFeu (profile), Sep 1st, 2011 @ 1:41pm

    “Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,”

    I think that is fair. The government is a bunch of guys with guns. If the telcos had not cooperated with such an illegal spying program it is quite likely that the feds would have retaliated. Ultimately, the ones responsible for this are the officials who ordered and implemented the spying program. Those people should be arrested, fined, subject to civil liability and then thrown in jail.

     

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      AR (profile), Sep 1st, 2011 @ 2:44pm

      Re:

      One thing that you may not realize is that by the telcos NOT refusing to do it, they then become complicit in the illegal act. I believe (but could be wrong) that in are current military, if an illegal order is given, it is the persons duty to disobey it. An example could be; If an officer in the military orders the torcher or murder of innocent people, the subordinates that performed the act are then guilty of the same crimes as the one giving the order. This is how it worked for the Nuremberg trials.

       

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        Anonymous Coward, Sep 1st, 2011 @ 2:59pm

        Re: Re:

        torcher... LOL

        The Nuremberg trials were after the War. I guess if the current powers in this country ceased to be and was replaced by a more just, then the execs at the telcos may begin to piss and shit themselves a bit. Most likely they would be more concerned with other things they have done though. Just my opinion.

         

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          AR (profile), Sep 1st, 2011 @ 5:08pm

          Re: Re: Re:

          But the point is the same. They are just as guilty as the Government for violating the 4 amendment. What is supposed to happen is when congress passes a law it is subject to judicial review and up to the Supreme Court to establish its constitutionality. What they are attempting is to circumvent the constitution itself on checks and balances. By not letting these cases go to trial and they are avoiding the Supreme Court and the constitutional question. All this under the guise of national security.

           

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        Qritiqal (profile), Sep 1st, 2011 @ 4:41pm

        Re: Re:

        You can spell Nuremberg but not torture?

         

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        PrometheeFeu (profile), Sep 1st, 2011 @ 4:45pm

        Re: Re:

        I do understand that. However, I'm ready to cut some slack to private citizens for not doing the right thing when the feds come knocking at their door. We do have legal precedent that when coerced, you are not responsible for your own actions. Was there coercion? Definitely some amount of coercion was involved. The real question is how much?

         

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          WysiWyg (profile), Sep 2nd, 2011 @ 7:21am

          Re: Re: Re:

          Definitely, but then again we're not talking about "private citizens", we're talking about big corporations with (presumably) lawyers that are ready to jump into the fray if needed.

          No, they should have resisted, they should have raised the alarm and they should have taken the feds to court (if the feds didn't back down).

           

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        PrometheeFeu (profile), Sep 1st, 2011 @ 4:51pm

        Re: Re:

        Also, if I recall correctly, (and I may be wrong about this) while saying you "just followed orders" was by no means helpful, saying "I was fearing I might get shot if I didn't cooperate" was definitely something that helped attenuate responsibility at Nuremberg.

         

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      PRMan, Sep 1st, 2011 @ 3:50pm

      Re:

      You mean like Sprint and Verizon and Qwest, who didn't cooperate?

       

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        PrometheeFeu (profile), Sep 1st, 2011 @ 4:49pm

        Re: Re:

        Hm... That's interesting. I did not realize those guys stayed out of the program. Yet, it is easy post-hoc to say there were no consequences for Verizon, etc... However, I would not have put it past the government to issue veiled threats to get what they wanted. (Perhaps a simple mention that "tax season is coming and it would be a shame if tax inspectors swarmed your offices...") Good for Verizon, Qwest and Sprint who resisted. I still find it hard to fully blame someone who caves before the guys with guns who are demonstrating a desire to break the law.

         

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    MrWilson, Sep 1st, 2011 @ 1:42pm

    The criminal equivalent

    The criminal equivalent of this would be for a defendant accused of theft to say to the judge, "you can't prosecute me for theft because being held responsible for my crimes and going to jail would stop me from being able to continue my criminal acts and therefore would pose too great a burden upon me. Even standing trial requires me to spend my ill-gotten gains on lawyers and that's not fair!"

     

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    Justin (profile), Sep 1st, 2011 @ 1:50pm

    Someone had to make the decision

    Some one had to make the decision of breaking the law, we need to stop letting the government or Corporation tag get the way, and punish the people who are truly responsible for the crimes.

     

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    Joe Publius (profile), Sep 1st, 2011 @ 1:53pm

    Secrets are the greatest tool of tyrants. By its very intent it's impossible to know how much wrong has been done under in the name of "that's classified".

    In the end, they want those magic words to convey an immunity that no free society should allow.

     

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    Anonymous Coward, Sep 1st, 2011 @ 1:58pm

    Judges are pretty bright on the whole

    They know where their paychecks come from.

     

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      Squirrel Brains (profile), Sep 1st, 2011 @ 4:16pm

      Re: Judges are pretty bright on the whole

      You means those judges that have life tenure and can't have their pay decreased?

       

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        Anonymous Coward, Sep 1st, 2011 @ 5:36pm

        Re: Re: Judges are pretty bright on the whole

        The ones who have life tenure and can't have their pay decreased just so long as they don't buck the system.

         

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          Squirrel Brains (profile), Sep 2nd, 2011 @ 7:56am

          Re: Re: Re: Judges are pretty bright on the whole

          They only way to get rid of them is to impeach and convict them in the House and the Senate. Even with lots of lobbyist's money, I doubt there would be enough political will to go through with it.

           

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    ts, Sep 1st, 2011 @ 2:24pm

    Checks and balances... great idea, but it's obviously not working. Apparently the founding fathers didn't anticipate all three branches of government being filled with incompetent sellout idiots.

     

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    mikey4001 (profile), Sep 1st, 2011 @ 2:58pm

    Breaking News: The government has just declared that it is logically impossible for those who create, buy, or enforce the law to break the law. One well respected judge was quoted as saying "I AM THE LAW!"


    This Just In: The price of bullets has risen ten-fold overnight with many retailers reporting shortages.

     

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    Michael, Sep 1st, 2011 @ 4:28pm

    easy answer

    If you are in a position to leak classified data, leak it. The government can spy on the people, the people can expose their secrets. Fair play.

     

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    A Guy (profile), Sep 1st, 2011 @ 7:09pm

    Kafka would be proud

     

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    Jay (profile), Sep 1st, 2011 @ 7:39pm

    Michael Kellogg, the carriers’ attorney, argued the immunity legislation was the right thing for the nation’s carriers, which could go bankrupt under the weight of defending the accusations in court.

    Hold the phone...

    AT&T has a revenue stream of $124B. Verizon? $106B. Just to be fair, let's look at Comcast who has $38B and Time Warner ($18B). All of this has been taken from wikipedia on 9/1.

    Now let's look at how much they spend lobbying to Congress with their revenue...

    AT&T - 30% more on lobbying but total money in expenditures? $12 million dollars for favorable legislation

    Verizon - $9 Million

    Comcast - $11 Million

    Time Warner - $4 Million

    Now out of all of these companies, that give a lot of money to Congress, I find it quite odd to hear that they're worried about making them bankrupt.

    AND PLEASE! SOMEONE GET THOMAS BYRON A REAL TIE INSTEAD OF THAT PINWHEEL!

     

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    velox (profile), Sep 2nd, 2011 @ 4:24am

    The "bankrupt" hyperbole was over the top, but on the other hand, maybe that's not so beyond the pale if they have spied on each and every one of us. Will we all be found to have a claim?

     

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      WysiWyg (profile), Sep 2nd, 2011 @ 7:42am

      Re:

      Not to worry, if you do have a claim, you can all enjoy the full dollar (credit on your next bill of course... if you remember to check) that you're awarded.

      Of course the lawyers gets about a million or so...

       

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    pjcamp (profile), Sep 2nd, 2011 @ 7:48am

    this is news?

    Maher Arar was kidnapped, sent overseas and tortured. His lawsuit was tossed out of court because it would have revealed national security secrets.

    German citizen Khalid el-Masri was similarly kidnapped and tortured in a case of mistaken identity. He was then released on a desolate road in Albania with no money, no identification, only the clothes on his back, and no passport. He was detained there as a terrorist due to his unkempt appearance and general lack of documents. He eventually sued (by video -- same mistaken identity resulted in him being denied entry to the US) which suit was dismissed. This suit was dismissed without being heard because it "would present a grave risk to national security."

    The state secrets exception has a long history of being used to cover up government embarrassment. You can read more about it here:

    https://secure.wikimedia.org/wikipedia/en/wiki/State_secrets_privilege

     

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    Derek Oldham, Sep 2nd, 2011 @ 8:15am

    Classified lawbreaking

    Sure ! And pigs can fly without the benefit of TSA pat-downs !
    You are MY government. I am NOT your servant. GTAFFAARD.

     

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    zeev, Sep 4th, 2011 @ 8:38pm

    ironic isn't it.

    the same legal industry whose gross neglect , and desire to make money by fees, has led to the banking and mortgage nightmare we have before us=----has some good side to it.

    here, there are lawyers working in a good way to promote restraint of government. this is the kind of work that earns the legal profession it's reputation for being an essential component of a thriving classically liberal and libertarian society. lawyers are supposed to traditionally be part of a society that restrains criminal behavior by government, at the highest levels.

    unfortunately over the past 2 decades of over-lawyering , nuisance lawsuits, and corporate and insurance lawyering, the american legal industry has mostly had a parasitic effect upon most of america. i'm glad there are still some lawyers fighting the government for basic liberty of american citizens from government coercion.

     

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