July 3, 2008 | By Kevin Bankston

What The New NSA Spying Decision Means for the Immunity Debate

As we reported yesterday, Chief Judge Vaughn Walker of the Northern District of California has just issued a key ruling in Al Haramain v. Bush, one of the cases challenging the NSA's warrantless wiretapping program. Judge Walker is also overseeing the consolidated litigation against the telecoms. With the Senate poised to vote on the FISA Amendments Act and immunity this Tuesday, this decision is particularly timely, as it demolishes key arguments made by proponents of telecom immunity:

Myth: The telecoms can't defend themselves in court because of the government's assertion of the state secrets privilege.
Fact: The Al Haramain decision makes clear that the state secrets privilege will not prevent the telecoms from defending themselves, because FISA's evidentiary procedures preempt the privilege. See Opinion at p. 2 ("FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes.")

Myth: It's not fair to punish the telecoms for relying in good faith on the president's authorization to conduct the surveillance, even though it violated FISA.
Fact: In an extended discussion, the Al Haramain decision makes clear — or rather, shows how clear it already was — that the President's commander-in-chief powers do not give him the authority to ignore FISA. See Opinion at pp. 10-14, 23 ("[With FISA,] Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities....")

Myth: Getting new language in the FAA asserting that FISA is the exclusive means by which the President can conduct domestic surveillance is a fair trade for gutting FISA's long-standing protections and giving the telecoms immunity.
Fact: Again, the Al Haramain decision makes clear that FISA was already the exclusive means by which the President may authorize electronic surveillance. See Opinion at p. 13 ("[FISA's language] and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.")

Myth: The cases against the telecoms were never going to go anywhere anyway, because of state secrets.
Fact: In discussing what level of evidence a plaintiff needs to demonstrate that they were "aggrieved" by electronic surveillance, and thereby avoid the state secrets issue by taking advantage of FISA's security procedures, Judge Walker specifically refers to the evidence put forward in the cases against the telecoms. See Opinion at p. 51 ("Plaintiff amici [i.e. EFF and others] hint at the proper showing when they refer to “independent evidence disclosing that plaintiffs have been surveilled” and a “rich lode of disclosure to support their claims” in various of the cases [against the telecoms].")

Myth: Letting the cases continue risks the disclosure to the public of information that would harm national security.
Fact: The Al Haramain decision makes clear that the telecom litigation would proceed under FISA's long-standing, never-breached security procedures, with classified evidence being considered by the court securely behind closed doors. See Opinion at pp. 18-19 (describing FISA security procedures, which preempt state secrets, as "Congress' specific and detailed prescription for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security....")

Myth: Anyone harmed by the surveillance program should just sue the government; why bother suing the telecoms?
Fact: Judge Walker's dismissal of Al Haramain's FISA claim, see Opinion at p. 56, following on the dismissal of the ACLU's case challenging the president's program in the Sixth Circuit, shows how cases against the government face their own challenges, and are no replacement for the telecom cases which remain the best bet for getting a ruling on the legality of the surveillance.

Myth: The telecoms have a "common law" defense for responding to the government's illegal requests.
Fact: As the Al Haramain decision explains, FISA's comprehensive regulation of electronic surveillance preempts the common law when it comes to such surveillance. See Opinion at pp. 16, 20 ("Congress through FISA established a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.... [Congress] inten[ded] that FISA should displace federal common law rules...with regard to matters within FISA's purview.")

Judge Walker's decision makes clear that Congress is about to pass telecom immunity based on arguments that are just plain wrong. Congress should take the time to look at the facts, rather than be fooled by the myths. It should not to rush to judgment next week. If you haven't already, phone your Senators now and urge them to vote against ending debate on the FISA bill, vote for the amendments to the bill that would strip or weaken the immunity provisions, and vote against final passage of the bill.

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