Judge Tosses NSA Spy Cases

Judge Tosses NSA Spy Cases
By David Kravets | January 22, 2010 | 2:27 pm

A federal judge is dismissing lawsuits accusing the government of teaming with the nation’s telcos to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

He noted that the plaintiffs include most every American connected to the internet or to have used a telephone — meaning the lawsuits boil down to a “general grievance” and are barred. The decision came days after a government audit showed the telecom companies and FBI collaborated for four years, between 2003 and 2007, to violate federal wiretapping laws.

Judge Walker said that the lawsuits, in essence, cannot be brought because they are “citizen suits seeking to employ judicial remedies to punish and bring to heel high-level government officials for the allegedly illegal and unconstitutional warrantless electronic surveillance program or programs now widely, if incompletely, aired in the public forum.”

Cindy Cohn, the legal director of the Electronic Frontier Foundation that brought one of the cases, said the decision means “when you’re trying to stop the government from doing something illegal, and if the government does it to enough people, the courts can’t fix it.”

The Electronic Frontier Foundation, which said it would appeal Walker’s order, and others originally brought suit against AT&T and other telecommunication companies in 2006. That was a month after President George W. Bush acknowledged a Terror Surveillance Program after it was disclosed in The New York Times.

The EFF, based on a former AT&T’s documentation, claims the program was, and continues to be a dragnet where carriers funnel customer communications to the National Security Agency without warrants. Bush, however, acknowledged the program as one in which his war powers granted him the authority to monitor American’s telecommunications without warrants if the subject was communicating with somebody overseas and was suspected of terrorism

Walker tossed the case against the telecommunication carriers (.pdf) in June, after Congress — with then-Sen. Barack Obama’s vote — immunized the carriers from being sued for their alleged conduct. The 2008 legislation also authorized the Terror Surveillance Program as outlined by Bush.

That decision by Walker, which is on appeal, gave new focus to the two lawsuits targeting the government that Walker tossed Thursday.

The Obama administration argued that the case decided Thursday should be dismissed on grounds it threatened to expose government secrets, a legal privilege judges routinely rubber stamp. The government also asserted “sovereign immunity,” a principle in which the government cannot be sued unless it has given consent.

Walker declined to rule on those arguments.

The ruling also elevates the importance of another lawsuit testing the president’s authority to spy on Americans without warrants.

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. That case is pending before Walker.