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Warrantless Wiretapping Cases Dismissed Against Telecom Companies
The Recorder
June 04, 2009
Chief Judge Vaughn Walker of California's Northern District dismissed dozens of cases brought by customers against a host of telecom companies (pdf), ruling that the plaintiffs could not overcome a law passed last summer that granted retroactive immunity to companies that helped the government.
He also ruled in favor of the government in another case and put a stop to efforts by five states to investigate the telecom companies.
But at a later hearing, which Walker called to decide whether he should sanction government attorneys for delay tactics, Walker gave Al-Haramain the go-ahead to file a motion for summary judgment that will address whether the defunct Islamic charity was subject to warrantless surveillance and whether President Bush had the power to order that surveillance after the terrorist attacks of Sept. 11, 2001.
"Now is the day of reckoning the American people deserve," Al-Haramain attorney Jon Eisenberg said after the hearing.
But questions linger over what role a classified document will play and whether Justice Department lawyers, who have repeatedly asserted the state secrets privilege, will even respond to the plaintiffs' arguments about presidential power.
Anthony Coppolino, the government's trial lawyer, said he faced two options: Disclose the classified document to argue that Al-Haramain wasn't subject to warrantless surveillance -- which he said he wouldn't do -- or face a "fictitious" judgment "based on assumed facts or on no facts."
"I don't see how it works," Coppolino said.
The government accidentally gave the document to Al-Haramain's attorneys in 2004 during a Treasury Department investigation that designated the charity a supporter of terrorism. The attorneys returned the document, which news accounts have reported shows a log of intercepted calls between charity associates. Al-Haramain then sued the government under the Foreign Intelligence Surveillance Act. In January, Walker ruled that FISA pre-empts the government's state secrets privilege.
Both Eisenberg and Walker have reviewed the document. But Walker said Wednesday that he won't rely on the document unless the government tells him that he ought to. In that case, the judge said, he would craft a protective order to disclose the document to the plaintiffs' attorneys while keeping it under seal. Eisenberg predicted that the government would immediately appeal that order, leading to more delay.
Walker had called Wednesday's hearing to discuss entering a default judgment against the government as a sanction for refusing to make the document available to the plaintiffs. Though the government has given Eisenberg and a fellow attorney top-secret security clearances, the National Security Agency has determined that they don't have a "need to know" for the contents of the document, Coppolino has said.
Walker did not order any sanctions, though Eisenberg asked him to award the plaintiffs' attorney fees for the work they have done responding to the government's delay tactics. Walker said he would "defer" that issue. He set a hearing for Sept. 1 to argue Al-Haramain's summary judgment motion.
Coppolino declined to comment after the hearing.
Despite Walker's dismissal of the telecom cases, known as Hepting v. AT&T (pdf), they may live to see another hearing. Cindy Cohn, legal director for San Francisco's Electronic Frontier Foundation, which is representing the plaintiffs, said on Wednesday that they planned to appeal Walker's ruling to the 9th U.S. Circuit Court of Appeals.
The Hepting cases allege that telecom giants participated in post-Sept. 11 domestic surveillance by allowing the government to access their customers' phone and Internet communications. But the FISA Amendments Act of 2008, signed into law by Bush in July, allows the attorney general to immunize anyone who assisted the "intelligence community" in surveillance meant to "detect or prevent" a terrorist attack. Attorney General Michael Mukasey submitted the certification for the telecoms in the Hepting case.
However, that immunity only applies to surveillance that occurred between Sept. 11, 2001, and Jan. 17, 2007, and Walker gave the plaintiffs 30 days to amend their complaint with evidence of spying that happened after the deadline. Cohn declined to say whether the EFF would file an amended complaint.
In his ruling, Walker wrote that the retroactive immunity granted by the FISA Amendments Act appeared to be unique among such laws. Nevertheless, he rejected each of the EFF's challenges to the act.
"While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing ... the court has examined the attorney general's submissions and has determined that he has met his burden," Walker wrote.
He added that he is barred from saying anything more, since the act allows the attorney general to file his certification in secret and prohibits the court from revealing what the certification claimed.
The EFF has filed another case, Jewell v. NSA, against the government based on the evidence it gathered against the telecoms. The government has moved to dismiss that case, which is also pending before Walker.
