Judge rejects telecom cases but Al-Haramain moves forward

Bad news for the EFF's and ACLU's attempts to sue telephone companies for cooperating with the NSA. Federal District Judge Vaughn Walker rejected the groups’ lawsuits because Congress had passed the FISA amendment giving telecoms immunity. The groups plan to appeal on constitutional grounds.

While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute. The court has examined the Attorney General's submissions and has determined that he has met his burden under section 802(a). The court is prohibited by section 802(c)(2) from opining further.

With the court refusing to subvert the intent of Congress EFF's Cindy Cohn says the battle will move to first and fourth amendment grounds, reports Ars Technica.

The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.

Importantly however the judge is allowing the case filed by the Muslim nonprofit Al-Haramain Islamic Foundation to go forward, even though he failed to penalize Justice Department lawyers for flouting previous orders. This case, says Jesselyn Radack at the DailyKos, reports:

One of the most viable challenges--one of the ONLY viable challenges--to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity, the Al-Haramain Islamic Foundation, which alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations . . . because the government inadvertently sent Al-Haramain an NSA log of intercepted calls.

Rather than rejecting the Bush administration's state secrets argument attorney general Eric Holder is taking an even worse position, she says.

The Obama administration's position is not just similar, it's identical, and arguably worse. The Obama Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but proposed that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.

The House is considering the State Secrets Protection Act to provide for judicial review when the government asserts the state secrets privilege.