The class-action lawsuits against telecoms accused of unlawfully participating in NSA surveillance without a court order were back before a federal judge Friday, for the first time since Congress voted to offer retroactive amnesty to the complicit firms.
Long stalled before the Court of Appeals for the Ninth Circuit, the consolidated suits against the telecoms were finally punted back to district judge Vaughn Walker last month, following passage of the FISA Amendments Act. The legislation requires that any civil action against a telecom be thrown out if the Attorney General certifies that the firm received a written directive authorizing their cooperation with the National Security Agency's secretive surveillance program. That would appear to put an end to the long legal battle, but as Friday's hearing before Walker made clear, attorneys for both sides have a few moves left to play.
Attorneys for the Electronic Frontier Foundation had hoped to immediately challenge the constitutionality of the immunity provision of the FISA Amendments Act. While it remains to be seen what approach EFF will take, some legal scholars have argued that retroactively voiding a vested legal claim runs afoul of the Fifth Amendment's Takings Clause, which bars the government from depriving people of property without just compensation. Absent the immunity legislation, customers whose private information was compromised could be collectively due billions in damages. In statements to press after the hearing, EFF attorney Cindy Cohn also hinted that there might be a separation of powers argument waiting in the wings.
Judge Walker, however, determined that the time was not yet ripe for that argument: First the government will have until September 19 to provide evidence that the FISA Amendments Act really does apply to the defendant telecoms. That just means that the Attorney General must provide certifications asserting that the companies were assured, when surveillance began in the wake of the 9/11 attacks, that the NSA program had been authorized by the president and determined to be lawful. Assuming that the certifications are forthcoming, Walker will then determine how to deal with the constitutional challenge.
Walker also set a deadline for new motions in a separate case involving NSA surveillance, brought by the Al-Haramain Islamic Foundation. This case is unaffected by the FISA Amendments Act, because the plaintiffs are bypassing the telecoms entirely and suing the government directly.
This suit began after a prosecutorial error accidentally handed Al-Haramain's legal team a classified document revealing that the Foundation's officials had been targets of surveillance. But the document remains under seal, and so lawyers for Al-Haramain now have until September 23 to submit evidence that establishes their standing to sue the government without recourse to any classified material.
It looks as though they may have a good chance of doing just that. In an article that appeared in Salon last week, attorney Jon Eisenberg noted that the surveillance of his clients—purported to be a fact so sensitive that it cannot be acknowledged in any way without compromising national security—is in fact confirmed in a speech publicly available on the FBI's web site.Posted on