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Obama expands Bush's legal defense of wiretapping program


Obama Administration quietly expands Bush's legal defense of wiretapping program
author: John Byrne (reposted by anon)
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 of the
federal surveillance statutes.

"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.