The Endgame

And an ugly precedent in the exercise of the power of the Executive is set: Telecoms Win Dismissal of Wiretap Suits (pdf)

A federal judge on Wednesday threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

Chief Judge Vaughn R. Walker of Federal District Court in Northern California said that although consumer and privacy groups raised important constitutional issues in their claims, Congress had left no doubt about its “unequivocal intention” when it passed a measure last summer giving immunity to phone carriers in the wiretapping program.

The ruling: In Re: National Security Agency Telecommunications Records Litigation. It points out that the options remaining to try to regain integrity in the system depend upon a few cases yet pending:

The two categories of cases not targeted for dismissal in the United States’ instant motion to dismiss are those brought against governmental entities (Al-Haramain Islamic Foundation, Inc v Bush, No C 07-0109; Center for Constitutional Rights v Bush, No C 07-1115; Guzzi v Bush, No C 06-6225; Shubert v Bush, No C 07-0693) and those brought by the United States against state attorneys general (United States v Clayton, C 07-01242; United States v Palermino, C 07-01326; United States v Farber, C 07-01324; United States v Reishus, C 07-01323; United States v Volz, C0 7-01396; Clayton v ATT, C 07-01187). The latter six actions by the United States against states are the subject of a separate motion for summary judgment brought under section 803 of FISAAA, 50 USC § 1885b (Doc #536) and a separate order by the court.

[…] The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. […]

We’ll see. But, don’t forget that this President specifically came off the campaign trail to vote on this immunity bill in the Senate, and he voted in favor — not to mention his continuation of the previous Administration’s policies when it comes to domestic telecommunications surveillance, so we can bet that there will continue to be nightmares to come.

Just consider: while one might imagine that the telecommunications companies “won” in this case, it’s now the case that these companies are vassals of the US Government. They no longer have recourse when told to break the law by the Government — they are no longer able to act on their clients’ behalf because they can no longer claim that the Government is asking them to shoulder a liability risk that violates their contracts with their customers and their fiduciary responsibility to their shareholders — anyone raising that objection will simply be told that the Government will immunize them. Which makes the closing portion of the New York Times’ article particularly ironic:

“We are gratified by the court’s decision,” said Michael Balmoris, a spokesman for AT&T, “and we look forward to continuing our focus on serving our customers’ needs.”


I have no desire to join the “tinfoil hat brigade,” but the expansion of executive power under this new Administration doesn’t look like much of a “change” to me at all. After all, there’s S.1100 — “Detainee Photographic Records Protection Act of 2009” —

A bill to provide that certain photographic records relating to the treatment of any individual engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside the United States shall not be subject to disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act)

To get a sense of just how miraculous it is that Al-Haramain is still being litigated at all, you might want to see this earlier post as well as the related New Yorker article (pdf).