Judge Tosses Telecom Spy Suits

Submitted by MacRonin on June 3, 2009 - 3:43pm

Judge Tosses Telecom Spy Suits: Via Threat Level.

A federal judge on Wednesday dismissed lawsuits targeting the nation’s telecommunication companies for their participation in President George W. Bush’s once-secret electronic eavesdropping program.

In his ruling, U.S. District Judge Vaughn Walker upheld summer legislation protecting the companies from the lawsuits. The legislation, which then-Sen. Barack Obama voted for, also granted the government the authority to monitor American’s telecommunications without warrants if the subject was communicating with somebody overseas suspected of terrorism.

Bush acknowledged the so-called Terror Surveillance Program in December 2005, and claimed as chief executive, his war powers gave him the authority to spy without court authorization.

Walker’s decision (.pdf), if it survives, ends more than three years of litigation accusing the nation’s carriers of funneling Americans’ electronic communications to the Bush administration without warrants in the aftermath of the Sept. 11, 2001 terror attacks. The ruling also means that the public may never know how the Bush White House coaxed the telecoms to participate in the program without court warrants, as the Electronic Frontier Foundation alleged in a lawsuit lodged in federal court here three years ago.

“Congress has manifested its unequivocal intention to create an immunity that will shield the telecommunications company defendants from liability in these actions,” Walker wrote.

The legislation at issue in the case was crafted after Walker had refused to dismiss the lawsuit the EFF brought in 2006 against AT&T. At the time, Walker’s initial decision allowing the case to go forward was idling on appeal before the San Francisco-based 9th U.S. Circuit Court of Appeals, meaning the merits of the lawsuit have never been addressed. All of the nation’s leading telecommunication companies have been added to the litigation.

The Bush administration and then the Obama administration argued that the original case should be dismissed on grounds that it threatened to expose government secrets, a legal privilege judges routinely rubber stamp. The EFF, in a bid to revive the lawsuit, challenged the immunity legislation on grounds that Congress was prohibited from legislating what the EFF termed was unconstitutional activity by the telecommunication companies.

“We’re disappointed,” said Cindy Cohn, the EFF’s legal director. “We think the judge is wrong.”

She said the EFF would appeal the decision to the San Francisco-based 9th U.S. Circuit Court of Appeals.

The EFF crafted the initial lawsuit around a former AT&T technician’s documentation suggesting that AT&T customers’ electronic communications were siphoned to the National Security Agency without warrants.

Still, while the lawsuits targeting the telecommunications appear all but dead, litigation testing the president’s authority to spy on Americans without warrants is alive and well in a different lawsuit before Walker.

That suit involves two American lawyers accidentally given a “top secret” document showing they were eavesdropped on by the government when working for a now-defunct Islamic charity in 2004. The case tests whether a sitting U.S. president may bypass Congress — in this case, whether President Bush abused his power by authorizing his secret spying program in the aftermath of the Sept. 11 attacks.

A hearing on that case is scheduled for later Wednesday.

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