Retroactive Immunity From The Gov't For Warrantless Wiretapping Deemed Constitutional

from the and-then-what? dept

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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Dec 30th, 2011 @ 7:53am

    I guess the government has to break its legal principles to uphold them.

    If the government is worse than those it's trying to suppress, then what's the point?

     

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    abc gum, Dec 30th, 2011 @ 8:00am

    Two sets of rules.
    1) Clandestine wire tapping without a warrant is ok because it performed by big business on behest of TLAs.
    2) The public video taping (not actually wire tapping) of police officers breaking the law is not ok because it is performed by dirty hippies who need to grow up and get a job. Also it makes the police feel uneasy about what they are told to do.

    The beat downs will continue until moral improves - you have been warned.

     

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    Ben (profile), Dec 30th, 2011 @ 8:06am

    This is common

    I would have been greatly surprised if this was found to be unconstitutional. It is unconstitutional to make something unlawful after the fact (an "ex post facto" law), but making something lawful after the fact happens is quite common. It seems that pretty much every year congress changes the tax code retroactive to the beginning of the year (granted that is a different scale than a criminal prosecution, but I'm certain it happens there too).

    If all else fails, one could think of it as the Legislative Branch's version of the Pardon.

    But just because it is common doesn't make it right. Someone should go up against a wall for what they did to our rights.

     

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      el_segfaulto (profile), Dec 30th, 2011 @ 8:14am

      Re: This is common

      The pot has been boiling for years now and the pressure is building up. In some places it is palpable. We may actually get to see some sweeping changes made in our lifetimes and perhaps those who have sold us out will be held accountable.

       

      reply to this | link to this | view in chronology ]

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    Jay (profile), Dec 30th, 2011 @ 8:24am

    Struggling here...

    It's really becoming a problem in seeing judges who use faulty rulings like this. It really feels like these judges are using Constitutional avoidance to make this case drag out far longer than need be.

    Am I the only one that thinks the judges in the US need to have a set of standards in dealing with Constitutional questions that seem to fly in the face of what they supposedly uphold?

     

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      Edward Teach, Dec 30th, 2011 @ 11:18am

      Re: Struggling here...

      Nay, mate, not the only one. Shiver me sides, I was mighty suspect over Judge Colleen Kollar-Kotelly deciding to keep Microsoft from major penalties in the 2001 anti-trust judgement. Kollar-Kotelly is also on the FISA court. I wondered if some connection between the two might be made by an honest swabbie.

      Virtually every copyright case that hits the Supreme Court seems to have this problem as well, particularly Eldred v. Ashcroft.

       

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    anonymous, Dec 30th, 2011 @ 8:37am

    just another excuse for the government to be able to monitor what the people are doing. talk about 'goodbye freedom, hello authoritarianism'!

     

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    Christopher (profile), Dec 30th, 2011 @ 8:53am

    I propose a new tag for these kinds of articles.

    Any article dealing with the government overriding or circumventing the spirit of the Constitution, shall be hereafter tagged "fourth box".

    -C

     

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    bjupton (profile), Dec 30th, 2011 @ 9:24am

    What makes this especially egregious is that the laws that were broken were SPECIFICALLY designed to protect the public against EXACTLY this sort of crime, as a result of similar actions by the government in years past.

    It was written to give companies that handled this information legal cover to tell the government to go pound sand, and yet they all rolled over like lap dogs.

     

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    Robert (profile), Dec 30th, 2011 @ 9:35am

    Solution: nip it in the bud!

    If the government, at the behest of entertainment industries, defense-related industries, oil-related industries, and all their lobbiests, want to control the Internet, then shut it down.

    I'm serious, shut the damn thing down. Turn it off. NO ONE gets to use it. Amazon, Google, Yahoo, NetFlix... and just about every news (or "news" when referring to Fox) network et. all will suffer. Billions of dollars will be lost. The entertainment industry won't have "piracy" to blame anymore.

    While the 'Net is down, hack and I mean really hack, get all the dirt you can on lobbying, paid-off judges, illegal actions of governments, accounting information (all of it) from every corporation (including their offshore tax havens), emails, etc... you name it. The "authorities" will be so busy trying to find out why not a single DNS will work, why not a single router will work, they won't have time to figure out what's really happening.

    Then, turn the 'Net back on, all at once. All the information gathered is all people will find, nothing else. One month of nothing but the information gathered. Hack the media so they only broadcast this information.

    Only then, when everyone is involved in spreading this information, only then when everyone knows about the bribes and abuses and factless claims, only then will people stand up (maybe). No distractions permitted, not a single one! We all know how easily the sheep are distracted, so you MUST hack every media outlet and lock the web to only display the information gathered. Pages upon pages of corruption exposed at once.

    And if after all of that nothing results? No uprisings where people walk into congress with police and arrest them, walk into corporations, government offices and arrest them, then we know we're done for. And all those who helped expose the truth will likely be happy to be put to death. Seriously, would you want to live in a world where the masses are so hopelessly stupid that even with all the real evidence (not some biased blog full of fluff and conspiracy theories) right in their face and they still side with the Gov?

    I'm betting if this were to actually happen, the shutdown and hack and exposure, you'd see nothing but mass executions and the look of disgust from sheeple.

    But seriously, you want to stop warrant-less tapping, abuses of the Constitution (or equivalent to your own country), you need to expose it all, all at once, everything. The only way to do that is to shut down the Internet, hack and steal, then combine it all into simple fact (with references) sheets that clearly show what's going on.

    Because clearly the judicial system is so far gone that "National Security" is being allowed to block anything and everything from fairness. The reason is obvious, when you're using "National Security" as a defense of your actions, you broke the law and are trying to hide. If the judicial system had any backbone and supported the People, not the $$ or government, it would have told the Gov to stuff their National Security where the sun doesn't shine!

    NOTE: To all "law enforcement" (aka: law abusers) reading this, I don't know how to actually do any of it, so don't harass me! Instead find some integrity, if you have any left, and go after your bosses and colleagues that are responsible for the mess we're in! Stop taking bribes, stop bribing others, and show some respect for yourselves and those around you. If you can't, then go find a quite place, live alone, and keep your sickness with you, and avoid infecting others! Thanks!

     

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      Rikuo (profile), Dec 30th, 2011 @ 11:24am

      Re: Solution: nip it in the bud!

      While I do believe in the spirit of what you're saying, I do find a huge flaw in what you're suggesting. You say turn off the internet and then hack...how are we to hack if the Internet's off? I suppose some people could hack locally, like say, some people could do a Sam Fisher and sneak into the NSA server room...but beyond that...

       

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        Robert (profile), Dec 30th, 2011 @ 3:00pm

        Re: Re: Solution: nip it in the bud!

        Correct, it would have to be an internal hack. Sorry, I watched fight-club recently so the concept of people stepping up and taking the power back kinda clouded my brain.

        With routers down, there would be no external hacking, and that's my intent, to get people involved in exposing their superiors for the frauds they are.

        But with the net being down, you'd have more people willing to do the job, as there were be so many talented developers out there willing to contribute their skills to assist those on the inside with their tasks.

         

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      Loki, Dec 30th, 2011 @ 12:25pm

      Re: Solution: nip it in the bud!

      A group of hackers in China breached the computer defenses of America's top business-lobbying group and gained access to everything stored on its systems, including information about its three million members, according to several people familiar with the matter.

      What makes you think they haven't already all beenhacked?

      Randomly and wantonly firing a machine gun is not always the most effective way to use a machine gun.

       

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        Robert (profile), Dec 30th, 2011 @ 3:05pm

        Re: Re: Solution: nip it in the bud!

        Yes but where is the exposure of fraudulent activity? That's the whole point of this suggestion, to acquire the information and expose them for the abusers/liars that they are. If China did hack, they should be pumping the information everywhere (which was what I suggested when the 'Net is turned back on).

        This isn't the same as simply firing a machine gun randomly. It's gather all information, from any defense/entertainment/legal/economic entity we know or suspect to be fraudulent or abusing the system.

        I don't care to know Coke's secret recipe, I care to know why Paulson was not arrested for his contribution to the economic mess (or Bernanke or Greenspan). I care to know the real accounting of the MPAA members and RIAA members and have EVERYONE know it, all at once.

        Little sites here and there are easy targets, but a sea of information, all repeating the same phrases, cannot be shut down. You can't stop a title-wave, but you can damn any little stream.

         

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    identicon
    Anonymous Coward, Dec 30th, 2011 @ 11:07am

    US Constitution

    Article 1, Section 9

    No Bill of Attainder or ex post facto Law shall be passed

     

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      Anonymous Coward, Dec 30th, 2011 @ 11:09am

      Re:

      it doesn't really get any more well defined than this.

      What someone should do is contest the constitutionality of the law that allowed these companies to receive retroactive immunity.

       

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        abc gum, Dec 30th, 2011 @ 11:42am

        Re: Re:

        "it doesn't really get any more well defined than this. "

        Clearly, the founding fathers didn't really intend to restrict the wholesale attack upon the defenseless population, otherwise they would've specifically said so - and therefore anything goes. Prepare to be assimilated - resistance if futile.

         

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    Anonymous Coward, Dec 30th, 2011 @ 2:40pm

    the basic summary: granting retroactive immunity is perfectly Constitutional, in large part because of the big scary bogeyman of "national security."

    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
    -Benjamin Franklin

     

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    identicon
    Anonymous Coward, Dec 30th, 2011 @ 3:20pm

    We'd be much better off without the CONstitution and the government it gave us.

     

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    identicon
    Willton, Dec 30th, 2011 @ 4:02pm

    Your beef lies with Congress, not the Courts

    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.

    So, basically, you're saying that giving immunity to the telcos is bad policy, not that it's unconstitutional. If that's the case, talk to the legislature, not the judiciary. Perhaps your misunderstanding of the Court's reasoning likely stems from your misunderstanding of the Court's role in this case.

    The Court came to the right conclusion on the nondelegation point. National security is traditionally a concern of the Executive branch, and giving the Executive the power to essentially pardon a telco based on national security concerns is not what I would consider an overreach of legislative power.

    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."

    No, it's not. The courts are the ones who ultimately determine whether the defense of immunity applies to a telco defendant, not the AG. The courts can reject the AG's certification as being wrong if they disagree. The fact that the AG convinced the judge in this case that the defendants qualified for immunity under § 802 does not put the AG in the role of adjudicator.

    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.

    Wait, so the AG is biased because he wants help in doing his job?

    In any event, it doesn't matter: the AG is not adjudicating any claims here. If you had read a little further than what you quoted, you would have read the following:
    The ultimate legislative judgment regarding immunity for the telecommunications companies was made by Congress, not the Attorney General, and falls to the courts, not the Attorney General, to review.
    Again, your beef is with Congress, not the Courts.

     

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    Rekrul, Dec 31st, 2011 @ 4:48am

    So "national security" makes virtually anything illegal? Great! There are some people I really dislike, so I guess I can just go and kill them, then say that they were a threat to national security and it will be perfectly legal. Right?

     

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