The Bush administration on Tuesday will try to convince a federal judge to let stand a law granting retroactive legal immunity to the nation's telecoms, which are accused of transmitting Americans' private communications to the National Security Agency without warrants.
At issue in the high-stakes showdown — set to begin at 10:00 a.m. PST — are the nearly four dozen lawsuits filed by civil liberties groups and class action attorneys against AT&T, Verizon, MCI, Sprint and other carriers who allegedly cooperated with the Bush administration's domestic surveillance program in the years following the Sept. 11 terror attacks. The lawsuits claim the cooperation violated federal wiretapping laws and the Constitution.
In July, as part of a wider domestic spying bill, Congress voted to kill the lawsuits and grant retroactive amnesty to any phone companies that helped with the surveillance; President-elect Barack Obama was among those who voted for the law in the Senate. On Tuesday, lawyers with the Electronic Frontier Foundation are set to urge the federal judge overseeing those lawsuits to reject immunity as unconstitutional. At stake, they say, is the very principle of the rule of law in America.
"I think it does set a very frightening precedent that it's okay for people to break the law because they can just have Congress bail them out later," says EFF legal director Cindy Cohn. "It's very troubling."
Since Bush will likely evade prosecution for his Iraq war crimes, it would certainly be an acceptable consolation prize to see this particular piece of legislation unwound. Let the courts do what the Congress didn't have the stones to.
The judge presiding over the case, U.S. District Judge Vaughn Walker of San Francisco, announced late Monday he wanted to discuss 11 questions (.pdf) at Tuesday's hearing, one of which goes directly to the heart of the immunity legislation.
Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision?
Carl Tobias, a professor at the University of Richmond School of Law, says the immunity legislation, if upheld, "makes it possible to extend immunity to other areas of the law." ...
The EFF is now challenging the immunity legislation on the grounds that it seeks to circumvent the Constitution's separation of powers clause, as well as Americans' Fourth Amendment rights against unreasonable searches and seizures.
"The legislation is an attempt to give the president the authority to terminate claims that the president has violated the people's Fourth Amendment rights," the EFF's Cohn says. "You can't do that."
God damn right. I'll bet the judge agrees. The SCOTUS, however ...