Today Chief Judge Vaughn Walker of the Northern District of California federal court asked for further briefing on a key constitutional question in the litigations brought against AT&T and the other telecommunications carriers for their involvement in the NSA's warrantless wiretapping. The Court noted that the FISA Amendments Act, the law passed by Congress last summer that allows the Attorney General to seek retroactive and prospective immunity for the telecommunications carriers, appears to contain "literally no guidance for the exercise of discretion" by the Attorney General in invoking the immunity provisions. This issue was raised by EFF and the other attorneys representing the customers of the major telecommunications companies in attacking the statute as unconstitutional. The Constitution forbids Congress from writing laws that grant unlimited discretion to the Executive Branch.
EFF will be spearheading the response on behalf of the customers of AT&T and the other carriers. Responding to this Order will give the Obama Administration its first chance to reevaluate the extreme positions taken by the Bush Administration in the telecom warrantless wiretapping cases and we hope that Attorney General Holder will use it to chart a course that is more consistent with both the Constitution and the rule of law than his predecessor. The supplemental briefs from both sides are due February 25, 2009.