For the last 12 years — and into the foreseeable future — the US government has vigorously avoided any court determination regarding its warrantless wiretapping program. The warrantless wiretapping program begun under President George W. Bush shortly after the events of 11 September 2001 and seamlessly continued through President Obama’s first term. Both administrations almost involuntarily invoked “national security” whenever the issue surfaces — especially in any court case. Obama wants to go further, insisting that the US Congress reauthorize the surveillance powers it passed in 2008, legalizing most of the warrantless wiretapping activity, which expire at the end of 2012.
On 1 June, two judges of the Ninth US Circuit Court of Appeals heard oral arguments in a case in which a lower federal court found that warrantless wiretaps of two attorneys had been illegal. A third judge didn’t hear oral arguments but will review the transcript and be involved in the decision. David Kravets, writing for Wired, reports that US Justice Department attorney Douglas Letter argued that the case should be dismissed “because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as sovereign immunity.” Kravets quotes Judge Michael Daly Hawkins’s summation of Justice’s argument: “The government’s position is you can’t sue the government, you can sue anybody else, but who those people are might be a state secret.” In other words, heads we win; tails they lose.
Trevor Timm, writing for the Electronic Frontier Foundation (EFF), provides an excellent overview of the three active warrantless wiretapping cases and the sovereign immunity argument:
“Sovereign immunity generally prevents the federal government from being sued unless an act of Congress authorizes it. Through it’s a complex, technical argument, the government is essentially asserting the only way to hold anyone accountable for future illegal national security wiretapping is to sue them in their individual capacities (and apparently requiring them to pay any damages out of their own pocket). Given that the FISA was written in the midst of the uproar over rampant official government surveillance, this outcome would be outrageous.”
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US Justice Department on warrantless wiretapping: Heads we win; tails they lose was originally published by ARTS & FARCES internet on Wednesday, 13 June 2012 at 12:22 PM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)