As you hopefully recall, a few years back, the press revealed that the Bush Administration had begun a rather sweeping wiretapping campaign, working with major telcos to get access to all sorts of phone and internet communications... without a warrant. That revelation resulted in a bunch of lawsuits against both the telcos and the government. In response, Congress quickly passed the FISA Amendments Act (FAA), which included a provision granting retroactive
immunity to the telcos who helped the government by passing along private info despite the lack of any warrant. Then Senator Obama originally opposed this provision, but changed his mind at the last minute... and has been an enthusiastic supporter of retroactive immunity since becoming President.
A series of 9th circuit appeals court rulings on various cases related to these issues all came out
on Thursday. The big one, Hepting v. AT&T, was on the question of the Constitutionality of the retroactive immunity clause. While the specifics of the ruling focus on some tricky specific legal claims (and you have to wade through 26 pages listing all the parties to the case...), the basic summary: granting retroactive immunity is perfectly Constitutional
, in large part because of the big scary bogeyman of "national security." For example, in the discussion of whether or not Congress had an "intelligible principle" in delegating authority concerning retroactive immunity under the Act to the Attorney General, the Court basically "national security" is good enough:
When considering how to respond to lawsuits like this one, the Committee "recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities." ... The Report further states that "electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation's telecommunication system." ... The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.
The fact that § 802 arises within the realm of national security--a concern traditionally designated to the Executive as part of his Commander-in-Chief power--further suggests that the intelligible principle standard need not be overly rigid.
This strikes me as somewhat bizarre reasoning. Even if we recognize that the government has to rely on the private sector in intelligence gathering, that should never
create immunity for illegal
activities. The concerns that telcos would be afraid to help the government without immunity seems ridiculous. If the actions were legal
then it would already have effective immunity, in that suits would be quickly dismissed. It's only if the actions are illegal
that they would need immunity.
There are a number of other specific points in the ruling, but the other one that strikes me as ridiculous is the court's response to Hepting's claim that another problem with the Act is that it puts a biased party in charge of determining who gets immunity, and that's a due process violation. To put it simply, if it's the government's own Attorney General deciding to grant telcos immunity to coverup the government's own illegal wiretapping... then that's a due process violation in that the plaintiff has no way to get a fair hearing from a neutral or unbiased judge. Amazingly, the court rejects this in two ways. First, by saying that the Attorney General "certifying" the actions of telcos to qualify them for immunity does not count as "adjudicating," but is merely "factfinding." But if that "factfinding" blocks any chance of the case being heard, isn't that effectively the same as "adjudicating."
The second reason for rejecting this argument is that we just have to assume
the Attorney General is unbiased, according to the court:
Hepting views Attorney General Mukasey as operating under "a structural, institutional bias" because he served during the Bush Administration, which advocated for the legislation, and was counsel to the United States in these lawsuits. He follows with the claim that Mukasey "had an actual bias in this matter," because he stated publicly that the immunity provision was "important" and that immunity represented "a fair and just result," and also conveyed this opinion to members of Congress.
Hepting ignores that the Attorney General has a legitimate
policy role. It is well established that "[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding." .... Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion.
Yeah, but that's not
the issue. No one's saying that public officials can't make use of legislation they supported in general
. But in this specific situation, the law allows the AG to very easily cover up illegal activities performed by companies to help his own investigations. That's
the bias concern. No one cares that he supported the law
. They're concerned that his bias is in covering up illegal actions that helped his own efforts.
The courts also rejected Hepting's argument that retroactive immunity precludes any legal action against the wiretapping, by noting that retroactive immunity only applies to the telcos -- but the government
itself can still be liable. And that's where the second important ruling on this issue comes in. The ruling in Jewel v. NSA is at least slightly more encouraging, in that it sends a separate, but related case against the government
for warrantless wiretapping back to the district court, rejecting many of its arguments that led it to dump that case earlier.
In that case, the district court dismissed the case, claiming that Jewel lacked the standing to sue the government. However, the appeals court disagrees and says that Jewel does have standing. It finds that Jewel showed "concrete and particularized injury." Of course, the district court may still turn around and dump the case, agreeing with the government's other key assertion that the "state secrets privilege" kills off the case. Of course, if that's what happens it kind of undermines the claim in the Hepting ruling that telco immunity is fine because you can still sue the government. Furthermore, even if the government loses
here, it's not clear that it matters. As in the similar Al-Haramain case, if the government is found to have illegally wiretapped someone, so what
? In Al-Haramin, the government just had to fork over about $40,000
. That's hardly going to make the government stop...
There was a third ruling related to all of this as well, in McMurray v. Verizon, which more or less was the same thing as the Hepting case, but also added one separate argument: that the FISA Amendments Act represented a violation of the Takings Clause. The court keeps this one short, and says that while the idea is a "novel approach," it really just doesn't apply here, in large part because McMurray "failed to seek just compensation from the Court of Federal Claims," as required for a Takings Clause claim to be valid.
In the end, the Jewel ruling is nice, but may not get much further, and the acceptance of the Constitutionality of retroactive immunity is pretty horrifying. Obviously, this seems not just ripe for abuse, but pretty clearly a sign that there was past abuse that the government is happy to keep covering up.