| The incoming Obama administration will vigorously defend congressional
legislation immunizing U.S. telecommunication companies from lawsuits about their
participation in the Bush administration's domestic spy program. That was the assessment
Thursday by Eric Holder, President-elect Barack Obama's choice for attorney general, who
made the statement during his confirmation hearings before the Senate Judiciary Committee.
A court challenge questioning the legality of the legislation is pending in U.S. District
Court in San Francisco -- where the judge in the case wanted to know what the Obama
administration's position was.
"The duty of the Justice Department is to defend statutes that have been passed by
Congress," Holder told Sen. Orin Hatch (R-Utah), who asked whether the Obama
administration would continue the legal fight to uphold the legislation that the
Electronic Frontier Foundation is seeking to overturn.
"Unless there are compelling reasons, I don't think we would reverse course,"
Holder added.
At a San Francisco hearing
in EFF's case last month, U.S. District Judge Vaughn Walker wondered aloud whether the
incoming Obama administration would continue to defend the legislation, which passed in
July. Obama opposed immunity but voted for it because it was included in a new spy bill
that gave the Bush administration broad warrantless-surveillance powers.
"We are going to have a new attorney general," Walker said from the bench,
wondering whether he should delay a decision, pending guidance from Obama. "Why
shouldn't the court wait to see what the new attorney general will do?"
The EFF is also accusing the nation's telecoms of funneling Americans' electronic
communications to the Bush administration without warrants in the aftermath of the Sept.
11, 2001, terror attacks.
Holder's comments came the same day a secret federal appeals court, the Foreign
Intelligence Surveillance Court of Review, released a declassified opinion (.pdf) approving
2007 legislation that gave the government broad powers to eavesdrop on international
communications — even those in the United States — without warrants.
The court, hearing a challenge to the Protect America Act from a telecommunications
company it did not name, said the Fourth Amendment to the U.S. Constitution was not
breached because the right to be free from unreasonable searches did not apply to foreign
intelligence gathering.
The August 2007 Protect America Act expired six months after its passage and was
revived as part of the immunity legislation Holder addressed Thursday. The secret court's
opinion did not address the Bush administration's once-secret eavesdropping program —
which was not authorized by Congress — initiated in the aftermath of the 2001
attacks.
The Justice Department lauded the opinion, which was rendered in August but just
released Thursday after it was declassified. "The Court of Review upheld the
lawfulness of the directives, concluding that the surveillance at issue fell within the
foreign-intelligence exception to the warrant requirement and was otherwise reasonable
under the Fourth Amendment," the department said.
The immunity legislation at issue was crafted after Walker had refused to dismiss the
lawsuit EFF brought in 2006 against AT&T, accusing the telco of violating its
customers' civil liberties. At the time, Walker's initial decision allowing the case to go
forward was idling on appeal before the San Francisco-based 9th U.S. Circuit Court of
Appeals — which dismissed the case as moot after President Bush signed the immunity
bill.
All of the nation's leading telecommunication companies have been added to the
litigation — the merits of which have never been decided.
The Bush administration had argued that the original case should be dismissed on the
grounds that it threatened to expose government secrets, a legal privilege judges
routinely rubber-stamp. The EFF, in a bid to revive the lawsuit, challenged the
immunity legislation on the grounds that Congress was prohibited from legalizing
what the EFF termed was unconstitutional activity by the telecommunication companies.
Walker's decision on the immunity legislation is pending.
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