Congress Cannot Grant Wholesale Immunity to Telecoms; FISA 2008 Act is Unconstitutional, ACLU Tells Court

Business Wire, Oct 17, 2008

CHICAGO -- Congress and the Bush White House overstepped their constitutional authority and violated the rights of millions of customers when they passed and approved legislation granting sweeping immunity to telecoms that collaborated in illegal spying. That assertion is contained in a court filing today by three California affiliates and the Illinois affiliate of the American Civil Liberties Union and the Electronic Frontier Foundation, along with other interested parties in cases consolidated in the U.S. District Court for the Northern District of California. The ACLU lawsuits filed on behalf of dozens of plaintiffs - including renowned Chicago journalist Studs Terkel, former California Congressman Tom Campbell, journalist Robert Scheer and actor Richard Belzer - challenge the unlawful collaboration of major telecommunications companies with the Bush Administration's warrantless dragnet surveillance of electronic communications and records.

"Under our constitutional system, Congress and the Executive Branch do not determine whether actions taken by the Executive violate basic constitutional rights," said Harvey Grossman, legal director for the American Civil Liberties Union of Illinois and co-lead counsel for the cases combined in the San Francisco court. "Since Marbury v. Madison, we have recognized that only a court can determine the meaning of the Constitution - it is simply not a power granted to the Congress and the President."

This filing is in response to passage of the Foreign Intelligence Surveillance Act Amendments of 2008 which mandate that courts dismiss any cases against AT&T or other telecommunications companies if the Attorney General chooses to file a secret certification attesting that the executive branch told the phone companies that the surveillance was lawful. Under the immunity provisions, the federal court does not determine whether the spying was in fact legal, but only that the representation of legality was made by the executive branch. The Attorney General has filed such a certification in these cases. This certification, according to the ACLU is not surprising, since the Attorney General argued for immunizing the telecoms in public statements and in testimony before the law was passed in public statements and in testimony before Congress.

"It strains credulity to believe that the same Attorney General who argued that immunity must be granted has fairly and completely weighed the interests of our clients in making his decision to ask the court to dismiss their case without determining whether any constitutional rights were violated," said Ann Brick, staff attorney for the ACLU of Northern California.

The brief filed today argues in its 1972 "Keith" decision, the Supreme Court ruled that domestic security surveillance requires prior judicial approval in the form of a warrant. The effect of the new immunity law is to overturn Keith and to dispense with this judicial gate keeping and instead to substitute the opinion of the executive branch that the spying is lawful. Thus, the Congress and the White House has unconstitutionally encroached on the well-recognized authority of the courts to determine when a constitutional violation has occurred.

"Instead of changing the law as is its prerogative, Congress simply attempted to substitute a Bush Administration interpretation of the Constitution for established law," said David Blair-Loy, legal director of the ACLU of San Diego and Imperial Counties. "This creates a clear and unquestionable violation of our fundamental principle of separation of powers."

Another area of grave constitutional concern for the ACLU is the FISA Amendments overly-broad grant of authority to the Attorney General to censor what materials drawn from the government's certification can be released in a public decision. The ACLU brief notes that under the First Amendment - and separation of powers required by our Constitution - only a court, not the Attorney General or Congress, can determine what information can be presented in a decision related to a civil proceeding.

"There is a critical First Amendment right to ensure that the public can access materials filed with our courts," said Peter Eliasberg, managing attorney of the ACLU of Southern California. "Courts must decide what materials can be kept from the public, not a political appointee like the Attorney General, who may be more interested in protecting a particular Administration than the public's right to know."

A copy of the brief filed in the Northern District of California in this matter can be found at http://www.eff.org/files/filenode/att/opposition101608.pdf