January 12, 2012
In December 2005, news agencies began reporting that President George W. Bush had ordered the National Security Agency (NSA) to conduct warrantless eavesdropping of some telecommunications in the U.S.
To accomplish this, it was further reported that the NSA had the cooperation of telecommunications companies to tap into a significant portion of the companies’ telephone and email traffic, both domestic and international.
In response, those telecommunications companies were sued under a wide array of different legal theories by many of their customers starting in January 2006.
In response to this, Congress enacted the FISA (Foreign Intelligence Surveillance Act) Amendments Act (FISAAA), which was signed into law by President Bush on July 10, 2008.
FISAAA contained a provision (located at Section 802) that retroactively granted immunity to telecommunications companies from all civil claims arising out of their “providing assistance to an element of the intelligence community.”
To qualify for this immunity, the U.S. Attorney General must certify to a U.S. district court that at least one of five different situations apply.
After such certification by the Attorney General, the U.S. government intervened in the lawsuits against the telecom companies, and, citing Section 802, moved to dismiss all of the claims.
Since Section 802 was clearly worded to summarily defeat their claims, the customers realized that the only way to prevail was to attack the new section itself, which they did.
Unfortunately for them, the trial court wasn’t persuaded by their arguments.
The appeals court, which just issued a ruling on the case, was similarly unconvinced.
While this result may be disappointing to privacy advocates, a look at the arguments employed by the customers shows that it shouldn’t be terribly surprising.
Three of the arguments focus on separation of powers (bicameralism and presentment, nondelegation; and congressional interference with litigation), and none of them had much precedential support in this situation.
The last two arguments were based on due process.
One claimed that Section 802 effectively bars all litigation of claims on the law, including challenges to its constitutionality (which would clearly be unconstitutional).
The appeals court found, however, that since FISAAA explicitly left open claims against the government, this wasn’t the case here (but the court kind of ignored any implications of possible independent sovereign immunity barring claims against the government).
The last claim, probably the strongest, was a Fifth Amendment deprivation of liberty and property interests without sufficient due process.
There were two parts to this claim, too, and both had to do with the Attorney General’s certification.
The first part was that the Attorney General’s certification was itself an improper adjudication in that he made the factual finding supporting the certification independently and unilaterally.
The appeals court didn’t agree.
Instead, it found that Congress, in enacting FISAAA, had essentially already made those findings for certification, and furthermore granted broad discretionary powers to the Attorney General to certify when immunity should and shouldn’t apply.
The second part of this argument has to do with the secrecy surrounding the whole process of certification.
Specifically, FISAAA allows the Attorney General to make the court review of the certification materials ex parte (only one party represented, often without notice to any other party) and in camera (in person).
The Attorney General can do this simply by declaring that public disclosure of the certification and related materials “would harm the national security of the United States.”
In making its findings on whether the case should be dismissed in light of the certification, the court may not reveal the specific subsection under which the certification was made nor reveal any such material.
Instead, it must simply state whether the case is dismissed and a description of the legal standards governing the order.
Then-Attorney General Michael Mukasey invoked this power for the current case, and thus, the hearing on the certification and case’s dismissal was done ex parte and in camera.
This last argument probably would have been successful if not for the element of “national security,” which has been repeatedly invoked to great effect by the Federal Government throughout history to sidestep constitutional prohibitions.
Whether, in light of the more recent diminished public concern over national security, the government will continue to employ this carte blanche as freely remains to be seen.
However, if this and previous cases are any indication, courts are more than willing to accommodate.