August 21, 2008 | By Kurt Opsahl

Appeals Court Remands Gov't Appeal in Hepting v. AT&T

Today, the United States Court of Appeals for the Ninth Circuit returned the Hepting v. AT&T case to the District Court. In a two sentence order, the court wrote:

In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

The government and AT&T had appealed Judge Vaughn Walker's June 2006 decision rejecting the argument that the state secrets privilege prevented millions of ordinary American from having their day in court. Oral argument was held August 2007.

Over the next year, the litigation was stayed because the appeal was pending. In the interim, Congress bowed to the demands of the Bush Administration and passed the unconstitutional retroactive immunity bill, the FISA Amendments Act.

The Government has not yet invoked the FAA's new procedures. Nevertheless, the government moved to have the Ninth Circuit stay the state secrets appeal, effectively asking the court for two chances to get the underlying litigation tossed from the courthouse. EFF opposed, noting that it was already well-known that AT&T and the government cooperated in the warrantless wiretapping program. We requested:

that the Court deny the government’s motion to hold this case in abeyance and instead dismiss the appeal and remand the case to the district court.

Earlier, in a related ruling last year, the Ninth Circuit had remanded the Al Haramain case to Judge Walker to determine whether FISA preempted the state secret privilege. In July, Judge Walker held FISA did preempt, and suggested that the Hepting plaintiffs might be able to benefit from the FISA preemption because they can show “'independent evidence disclosing that plaintiffs have been surveilled' and a 'rich lode of disclosure to support their claims.'"

This decision is good news for the millions of AT&T customers who were illegally surveilled under the warrantless wiretapping program. While we still must convince the court that the retroactive immunity bill is unconstitutional, for now, the state secrets privilege will not keep the courts from dispensing justice.

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