Obama Administration quietly expands
Bush's legal defense of wiretapping program
04/07/2009 @ 10:01 am
Filed by John Byrne

http://rawstory.com/news/2008/Obama_Administration_quietly_expands_Bushs_legal_0407.html

In a stunning defense of President George W. Bush's warrantless 
wiretapping program, President Barack Obama has broadened the 
government's legal argument for immunizing his Administration and 
government agencies from lawsuits surrounding the National Security 
Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that 
the Obama Administration has gone beyond any previous legal claims 
put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice 
Department argued that the government was protected by "sovereign 
immunity" from lawsuits because of a little-noticed clause in the 
Patriot Act. The government's legal filing can be read here (PDF).

For the first time, the Obama Administration's brief contends that 
government agencies cannot be sued for wiretapping American citizens 
even if there was intentional violation of US law. They maintain that 
the government can only be sued if the wiretaps involve "willful 
disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful 
disclosure' of intelligence information by government agents, as 
described in Section 223(a)(3) and (b)(3), and such disclosures by 
the Government are the only actions that create liability against the 
United States," Obama Assistant Attorney General Michael Hertz wrote 
(page 5).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier 
Foundation, which is suing the government over the warrantless 
wiretapping program, notes that the government has previously argued 
that the government had "sovereign immunity" against civil action 
under the FISA statute. But he says that this is the first time that 
they've invoked changes to the Patriot Act in claiming the US 
government is immune from claims of illegal spying under any other 
federal surveillance statute.

"They are arguing this based on changes to the law made by the USA 
PATRIOT Act, Section 223," Bankston said in an email to Raw Story. 
"We've never been fans of 223--it made it much harder to sue the U.S. 
for illegal spying, see an old write-up of mine at: 
http://w2.eff.org/patriot/sunset/223.php --but no one's ever 
suggested before that it wholly immunized the U.S. government against 
suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is 
generally supportive of progressive interpretations of the law -- 
says the Obama Administration has "invented a brand new claim" of 
immunity from spying litigation.

"In other words, beyond even the outrageously broad 'state secrets' 
privilege invented by the Bush administration and now embraced fully 
by the Obama administration, the Obama DOJ has now invented a brand 
new claim of government immunity, one which literally asserts that 
the U.S. Government is free to intercept all of your communications 
(calls, emails and the like) and -- even if what they're doing is 
blatantly illegal and they know it's illegal -- you are barred from 
suing them unless they 'willfully disclose' to the public what they 
have learned," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively 
a product of the new Administration, noting that three months have 
elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the 
ample time that elapsed -- almost three full months -- makes clear 
that it was fully considered by Obama officials," Greenwald wrote. 
"Yet they responded exactly as the Bush DOJ would have. This 
demonstrates that the Obama DOJ plans to invoke the exact radical 
doctrines of executive secrecy which Bush used -- not only when the 
Obama DOJ is taking over a case from the Bush DOJ, but even when they 
are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using 
an absurdly broad rendition of 'state secrets' to block entire 
lawsuits from proceeding even where they allege radical lawbreaking 
by the President and inventing new claims of absolute legal immunity 
-- are now things the Obama DOJ has left no doubt it intends to 
embrace itself," he adds.

Both the Electronic Frontier Foundation and the American Civil 
Liberties Union say the "sovereign immunity" claim in the context of 
the case goes farther than any previous Bush Administration claims of 
wiretap immunity.

Writing about the changes to the Patriot Act last year, the EFF 
asserted that revisions to the Act involved troubling new 
developments for US law.

"Unlike with any other defendant, if you want to sue the federal 
government for illegal wiretapping you have to first go through an 
administrative procedure with the agency that did the wiretapping," 
the Foundation wrote. "That means, essentially, that you have to 
politely complain to the illegal wiretappers and tip them off to your 
legal strategy, and then wait for a while as they decide whether to 
do anything about it before you can sue them in court."

Moreover, they said, "Before PATRIOT, in addition to being able to 
sue for money damages, you could sue for declaratory relief from a 
judge. For example, an Internet service provider could ask the court 
to declare that a particular type of wiretapping that the government 
wants to do on its network is illegal. One could also sue for an 
injunction from the court, ordering that any illegal wiretapping 
stop. PATRIOT section 223 significantly reduced a judge's ability to 
remedy unlawful surveillance, making it so you can only sue the 
government for money damages. This means, for example, that no one 
could sue the government to stop an ongoing illegal wiretap. At best, 
one could sue for the government to pay damages while the illegal tap 
continued!"

The Obama Administration has not publicly commented on stories that 
revealed their filing on Monday.

Correction: EFF Attorney Kevin Bankston's comments about the 
government's previous sovereign immunity claims were incorrectly 
summarized in an earlier version of this article. They have been 
corrected.
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