June 10, 2009 – Last week, U.S. District Judge Vaughn Walker issued a ruling that strikes at the heart of the Constitution. He dismissed 46 separate law suits that have been filed by consumer groups against the United States’ largest telecommunications firms. The suits were filed because firms such as AT&T assisted the government in the warrantless wiretapping of Americans. By the wording of his ruling, Judge Walker clearly understood that the actions of these companies may have violated the Constitution but indicated that he was powerless to do anything else because Congress passed a law in 2008 which retroactively immunized the telecommunications companies from legal action. The effect of the ruling is a gutting of the Fourth Amendment.
The Fourth Amendment is very short and quite clear. It is a part of the Bill of Rights and it reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The warrantless wiretapping program put in place after the attacks of 9/11 were a clear violation of it.
While warrantless wiretapping may have been expedient, it was unnecessary. The Foreign Intelligence Surveillance Act, also known as FISA, established a federal FISA court system. In this system, cases involving national security are heard and overseen by federal judges. The system was put in place specifically to deal with issues such as those faced by the United States after what happened at the World Trade Center. Unfortunately, the Bush administration elected to circumvent the FISA courts and had the NSA work directly with large telecommunications firms to monitor virtually every call made within the United States. The only large telecom company that refused to cooperate with the program was QWEST.
After the news of the program was reported by the New York Times, law suits began to fly. The Bush administration tried to have them thrown out, but was unsuccessful. That is, they were unsuccessful right up until 2008 when a Congress now dominated by the Democrats agreed to pass a bill that gave the companies immunity. This was a bill that Barack Obama initially opposed but which eventually decided to support. Now as President, Obama has continued to oppose the law suits.
The Democrats usually try to claim the high ground in matters of civil liberties. In this case, their position has been both startling and eye opening.
More important that the positions of the Obama administration and Congress is the position that the court has taken. While it is true that Congress passed a law that that gave the telecommunications companies immunity, the court does not seem to understand the implications of saying that Congress has a right to do this. What do Constitutional Rights mean if Congress is free to pass laws that say “if you violate the Constitution, nobody can do anything to you”? The implication is that Congress has a right to pass laws using a simple majority to overturn Constitutional law which was enacted with at least two thirds support of both Congress and the states. The decision flies in the face of reason.
Unfortunately, Judge Walker didn’t see it that way. In his opinion he wrote that Congress had created a “’focused immunity’ for private entities who assisted the government with activities that allegedly violated plaintiffs' constitutional rights," but that the law had not "affected plaintiffs' underlying constitutional rights." That's just a lot of double talk to tell you that your rights may have been violated but you have no way to enforce them.
The judge’s decision didn’t completely kill the law suits. President Bush directed that from January 17th, 2007, all surveillance should be subject to the FISA courts. Judge Walker has given the plaintiffs in the case 30 days to provide any evidence they may have that the telecommunications companies continued to assist the NSA after that date without court orders. If they are successful, the suits may continue.
The Electronic Frontier Foundation (EFF) which has been leading the charge in these law suits has said that it will now appeal the decision to the 9th Circuit Court of Appeals.
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