Monday, April 13, 2009

Yes, the new boss really is the same as the old boss

Last week, I reported that the Obama administration is continuing Bush administration arguments that evidence of some government abuses is a "state secret" beyond the reach of the courts. Recently, Justice Department lawyers made just that claim in a case involving allegations of warrantless wiretapping by the National Security Agency. But the Electronic Frontier Foundation, an online civil liberties group which represents plaintiffs in that case, says the Obama administration has also raised novel arguments that the government can't be sued even if it did engage in illegal wiretapping.

According to Tim Jones, EFF's Activism and Technology Manager:

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

The specific language referred to by Jones is found on page 13 of the government's motion to dismiss the wiretapping case (PDF):

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. ...

Congress has expressly barred suits against the United States for damages and equitable relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting relief against only a “person or entity other than the United States.” See 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a). Congress enacted these express reservations of sovereign immunity in Section 223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.

The only exception to sovereign immunity, the Justice Department argues, is "a willful, unauthorized disclosure of information by a Government agent." As a result, the government argues,"the Court lacks subject matter jurisdiction to grant plaintiffs’ claims for equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA."

Taken together, the federal government's position boils down to an argument that the evidence people require to prove that their rights have been violated by the government is a state secret that can be withheld from them, inherently crippling their case. And, even if they could acquire the evidence to prove their point, the government can't be sued for whatever it does in terms of wiretapping.

The Obama administration's position is really a remarkable one: It doesn't matter if the government engaged in violations of civil rights, since there's nothing anybody can do about it.

For anybody still hoping that a change of parties and presidents would represent a revival of respect for civil liberties, the government's actions represent a cold rain of reality.

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