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Challenges to NSA wiretapping shut down

UPDATE 7:40 p.m.

The American Civil Liberies Union and the Electronic Frontier Foundation announced plans to appeal the ruling discussed below, to the Ninth Circuit Court, arguing that the 2008 telecom immunity law is unconstitutional.  A press release is here.


A federal judge, in an opening ruling on issues likely to reach the Supreme Court, gave the federal government on Wednesday a major but maybe not complete victory in fending off challenges to secret government wiretapping done without court approval.  U.S District Judge Vaughn R. Walker of San Francisco upheld an 11-month-old federal law that immunized telecommunications companies from damage lawsuits for allegedly helping the National Security Agency engage in eavesdropping that may have reached telephone calls, e-mails and other messages inside the U.S.

As a result, Judge Walker dismissed 46 lawsuits against the telecom industry, saying Congress had validly insulated them from these very lawsuits.  In a separate ruling, the judge also ordered a shutdown of investigations by officials in five states, aimed at finding out how telecom companies had helped the NSA with its electronic spying.

Both rulings came at the request of the federal government, invoking an immunity law that Congress adopted July 10 of last year.  Judge Walker’s ruling on telecom immunity can be downloaded here, and his decision stopping state investigations can be downloaded here

The ruling stopping the lawsuits may not have ended all of those challenges, however.  Judge Walker noted that the 2008 law’s grant of immunity could only be used to block lawsuits from eavesdropping activities authorized by the President between Sept. 11, 2001 — the day of the terrorist attacks on the U.S. — and Jan. 7, 2007.

And, the judge noted, lawyers for challengers had filed this month new claims that the NSA had continued its warrantless electronic spyying after that cutoff date.  While he dismissed the cases, he said he had done so “without prejudice” to allow the challengers to file amended lawsuits “to allege causes of action” not covered by the invocation of immunity under the 2008 law.

The judge cautioned, however, that such new claims had to be quite specific.  For that proposition, he cited the Supreme Court’s ruling on May 18 in Ashcroft v. Iqbal (07-1015), finding inadequate claims made in lawsuits against former and present high officials over abuse of terrorism suspects rounded up inside the U.S. after the 9/11 attacks.