Obama Administration Claims It Can’t Be Sued over Indiscriminate Wiretapping

Monday, October 08, 2012

Claiming immunity from civil action, the Obama administration is fighting two lawsuits seeking to end the alleged electronic surveillance of Americans.


One lawsuit, brought by lead plaintiff Carolyn Jewel on behalf of current and former AT&T customers, claims the company helped the National Security Agency eavesdrop on them.


The other case, filed by Virginia Schubert and three others, addresses all Americans who have been subjected to illegal spying by the government.


The surveillance began under President George W. Bush, who authorized the Terrorist Surveillance Program after the September 11, 2001, terrorist attacks. Bush instructed the National Security Agency (NSA) to intercept Americans’ telephone calls without warrants, which were required by the Constitution and the Foreign Intelligence Surveillance Act (FISA). FISA, a post-Watergate statute meant to rein in domestic surveillance, created a special court, the Foreign Intelligence Surveillance Court (FISC), to approve or reject requests for domestic surveillance.


Between 1978 and 2000, presidents Jimmy Carter, Ronald Reagan, George H.W. Bush and Bill Clinton submitted 13,087 applications for warrants. The FISC approved 13,085 of them, modified one and rejected one. However after George W. Bush became president, he clashed with the FISC even though all of its eleven members were appointed by conservative Supreme Court Chief Justice William Rehnquist. The court rejected six of Bush’s requests outright and modified 179. Annoyed, Bush bypassed the law and ordered the NSA to secretly conduct the illegal wiretapping.


Both lawsuits contend the spying violates the U.S. Constitution, including the Fourth Amendment prohibiting unreasonable searches and seizures.


In defending the administration, the U.S. Department of Justice has argued that the cases should be dismissed because they are protected by state secrets privileges. “The Foreign Intelligence Surveillance Act does not authorize a claim against the Government defendants sued in their official capacities, the state secrets privilege bars the litigation of plaintiffs’ remaining claims and the state secrets privilege is not displaced by the FISA,” the government wrote to the court.


U.S. District Judge Jeffrey S. White will hear the case in San Francisco on December 14.

-David Wallechinsky, Noel Brinkerhoff


To Learn More:

Government Asks Court to Toss Wiretap Claims (by Philip Janquart, Courthouse News Service)

Virginia Shubert v. Barack Obama (U.S. District Court, Northern California) (pdf)

Obama Fights to Retain Warrantless Wiretapping (by Matt Bewig and David Wallechinsky, AllGov)

Federal Court Gives Go-Ahead to NSA Illegal Surveillance Case (by Noel Brinkerhoff and David Wallechinsky, AllGov)


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