Telco immunity faces first court challenge

Nick Juliano
Published: Friday October 17, 2008

Plaintiffs suing AT&T and other telecommunications companies filed a lengthy motion in court this week arguing the government could not retroactively invalidate their lawsuit because its immunity authority is unconstitutional and destroys the notion of coequal branches of government.

Last month, the government moved to dismiss all lawsuits against telecommunications companies based on authority granted to the Attorney General in this summer's update to the Foreign Intelligence Surveillance Act. Responding to that motion Thursday, plaintiffs argue that the "novel and unprecedented scheme" outlined in the FISA update would usurp the concept of judicial review, while flying in the face of privacy protections enshrined in the constitution.

The immunity section of the FISA Amendments Act gives the Attorney General the authority to dismiss civil lawsuits against phone and Internet providers who abetted warrantless surveillance on the grounds that the surveillance was authorized by the president and that the phone companies were told it was legal.

"That is a just a bare and unconstitutional act that for which there simply is no precedent whatsoever," Harvey Grossman, an American Civil Liberties Union representing the plaintiffs, tells RAW STORY. "Congress simply doesn't have the power to rewrite the 4th amendment."

A 61-page filing argues that Congress doesn't have the authority to issue a retroactive immunity statute, that immunity violates separation of powers by improperly inflating executive branch authority, that immunity violates individuals rights to due process, that the secrecy provisions of immunity violate the First Amendment by creating a "chilling effect" on free speech, and that the government has not justified dismissing the telecom lawsuits even if its ability to do so was constitutional.

At stake are the privacy rights of every American who trusts and uses the communication facilities of AT&T, MCI, Verizon, BellSouth, Cingular, or Sprint to transmit their most private and important thoughts. But also at stake is something equally fundamental—the role of the Judiciary in the constitutional structure of our government. For if Congress can give the Executive the power to exclude the Judiciary from considering the constitutional claims of millions of Americans, can abdicate to the Executive the authority to change the law applicable in specific litigation, and can prevent the Judiciary from making an independent determination of the facts and law in specific litigation, then the Judiciary will no longer be functioning as a co-equal branch of government.

The Electronic Frontier Foundation and American Civil Liberties Union are representing plaintiffs in the various telecom lawsuits the government is attempting to dismiss.

"The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," EFF Senior Staff Attorney Kevin Bankston said in a news release. "In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."

Thursday's filing in the US District Court for the Northern District of California meticulously outlines its arguments, relying on dozens of cases dating back to the 1803 decision in Marbury v. Madison, which first established the principal of judicial review. Plaintiffs also argue that Congress's attempt to imbue the executive branch with nearly unfettered authority to decide whether its actions are constitutional is at odds with this year's Supreme Court decision in Boumediene v. Bush, which struck down Congress and the Bush administration's attempts to deny habeas corpus rights to Guantanamo detainees.

When, however, Congress and the Executive have left open no path for adequate judicial review of constitutional claims, the Court has not hesitated to strike down the obstructions to judicial review the political branches have erected. The Supreme Court did so just last term in Boumediene v. Bush, when it affirmed that Guantanamo detainees have the right to full judicial adjudication of their constitutional claims notwithstanding the attempts of Congress and the Executive to keep those claims out of court. At issue in Boumediene were the Military Commissions Act (MCA) and the Detainee Treatment Act (DTA), in which Congress prohibited habeas corpus review of the legality of the detention of the detainees. The Court held that the detainees were entitled to some form of judicial review of their constitutional claims.

Plaintiffs hope the courts will reach a similar decision to strike down the FISA Amendments Act.

As RAW STORY has previously reported, EFF and the ACLU began preparing their legal challenges to immunity and other aspects of the FISA Amendments Act even before Congress put its final stamp of approval on President Bush's demands for immunity in July.

Thursday's filing is the first direct court challenge to retroactive immunity.

It comes after several broader, parallel attempts to stop the National Security Agency's warrantless wiretapping program in court. EFF has a separate suit it filed last month targeting the NSA directly, rather than the telecoms, and the ACLU filed its own challenge this summer to the provisions of FISA update aside from telecom immunity.

"This is a bad law, hotly contested, that is more the product of election year politics than it is reasoned and seasoned policy judgement," Grossman said in a phone interview Friday. "I'm hopeful that a new congress and a new president will reexamine what' they've done here."