Feds to Judge: Don't 'Second Guess' Bush Domestic Spy Program: Via Threat Level

SAN FRANCISCO --- The Bush administration on Tuesday urged a federal judge to dismiss lawsuits against the nation's telecommunications companies accused of being complicit in the government's once-secret spy program adopted in the wake of the 2001 terror attacks on the United States.

"That was designed to protect from a terrorist attack," Deputy Assistant Attorney General Carl Nichols told U.S. District Judge Vaughn Walker.

Walker was hearing oral argumentson whether to uphold legislation barring lawsuits accusing the telecoms of violating Americans' privacy for allegedly forwarding electronic communications to the government. "I don't think it would be appropriate for this court to look back and second guess the administration."

In July, Congress passed legislation immunizing the telecoms from lawsuits brought by the Electronic Frontier Foundation, the American Civil Liberties Union and others accusing the companies of funneling all electronic communications to the National Security Agency without warrants. The government has neither directly confirmed nor denied the allegations, but Bush in late 2005 acknowledged a limited warrantless spy program of eavesdropping on Americans international phone calls and e-mails.

Still, Walker was concerned that the immunity law, which also authorized the admitted eavesdropping, gives the attorney general too much power.

"It gives the attorney general carte blanche to immunize anyone who in his judgment or view who should be immunized from possible liability," Walker ruled from the bench.

President-elect Barack Obama approvedthe legislation in July. At the close of a two-hour hearing here, Walker did not say when he would rule.

Richard Wiebe, an EFF attorney, said the immunity provision allowed for an attorney general "camouflage" or a "smokescreen" and said it was unconstitutional to immunize what he said was unconstitutional behavior.

He said the companies should face lawsuits for what he termed "mass unwarranted surveillance."

Nichols, however, countered. He said government declarations for immunity submitted to the court under seal are signed under oath. "Congress recognized these cases created a risk to national security," Nichols said. "Congress has spoken."

At several points during the nearly two-hour hearing, Walker appeared to have agreed with Nichols. He noted that the government often strips judges of their power to hear cases, like in 2005 when Congress immunized gun manufacturers from liability. He told Wiebe his complaint should be made with Congress.

"I'm the wrong person to be making that argument to," Walker ruled.

Walker also wondered aloud whether he should decide the case before the Obama administration takes office in January.

"It would be very, very unlikely for any future Department of Justice to decline to defend the constitutionality of the statute,"
replied Nichols, who conceded the law was unprecedented.

Congress passed the immunity measure after Walker dismissed the government's claim that the lawsuits against AT&T, Sprint and others filed in 2006 should be dismissed because they threatened to expose state secrets ??? an argument known as the state secrets privilege. Walker's decision was on appeal to the San Francisco-based 9th U.S. Circuit Court of Appeals when lawmakers passed the immunity measure. The appeals court, noting the legislation, dismissed the appeal as moot.

Walker, for argument's sake, assumed the carriers and government engaged in the alleged conduct and wondered aloud what would be so wrong with the litigation being solely directed at the government.

"Let's assume that's exactly what happened. Then why shouldn???t the government just be on the hook for any harm or damage?" Walker asked.

Cindy Cohn, the EFF's legal director, replied that the "carriers have an independent duty to protect their customers," and that there is no way to guarantee that the courts would not overturn Walker's ruling that the state secrets privilege doesn't apply in the eavesdropping cases.

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