[Infowarrior] - Judge Tosses NSA Spy Cases

[Richard Forno]

udge Tosses NSA Spy Cases
	• By David Kravets
	• January 22, 2010  |
	• 2:27 pm  |
	• Categories: Cover-Ups, Surveillance, privacy

	http://www.wired.com/threatlevel/2010/01/nsa-spy-cases-tossed/

A federal judge is dismissing lawsuits accusing the government of  
teaming with the nation’s telcos to funnel Americans’ electronic  
communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the  
two suits testing warrantless eavesdropping and executive branch  
powers implemented following the 2001 terror attacks. The San  
Francisco judge said the courts are not available to the public to  
mount that challenge.

“A citizen may not gain standing by claiming a right to have the  
government follow the law,” (.pdf) Walker ruled late Thursday.

He noted that the plaintiffs include most every American connected to  
the internet or to have used a telephone — meaning the lawsuits boil  
down to a “general grievance” and are barred. The decision came days  
after a government audit showed the telecom companies and FBI  
collaborated for four years, between 2003 and 2007, to violate federal  
wiretapping laws.

Judge Walker said that the lawsuits, in essence, cannot be brought  
because they are “citizen suits seeking to employ judicial remedies to  
punish and bring to heel high-level government officials for the  
allegedly illegal and unconstitutional warrantless electronic  
surveillance program or programs now widely, if incompletely, aired in  
the public forum.”

Cindy Cohn, the legal director of the Electronic Frontier Foundation  
that brought one of the cases, said the decision means “when you’re  
trying to stop the government from doing something illegal, and if the  
government does it to enough people, the courts can’t fix it.”

The Electronic Frontier Foundation, which said it would appeal  
Walker’s order, and others originally brought suit against AT&T and  
other telecommunication companies in 2006. That was a month after  
President George W. Bush acknowledged a Terror Surveillance Program  
after it was disclosed in The New York Times.
The EFF, based on a former AT&T’s documentation, claims the program  
was, and continues to be a dragnet where carriers funnel customer  
communications to the National Security Agency without warrants. Bush,  
however, acknowledged the program as one in which his war powers  
granted him the authority to monitor American’s telecommunications  
without warrants if the subject was communicating with somebody  
overseas and was suspected of terrorism

Walker tossed the case against the telecommunication carriers (.pdf)  
in June, after Congress — with then-Sen. Barack Obama’s vote —  
immunized the carriers from being sued for their alleged conduct. The  
2008 legislation also authorized the Terror Surveillance Program as  
outlined by Bush.

That decision by Walker, which is on appeal, gave new focus to the two  
lawsuits targeting the government that Walker tossed Thursday.

The Obama administration argued that the case decided Thursday should  
be dismissed on grounds it threatened to expose government secrets, a  
legal privilege judges routinely rubber stamp. The government also  
asserted “sovereign immunity,” a principle in which the government  
cannot be sued unless it has given consent.

Walker declined to rule on those arguments.

The ruling also elevates the importance of another lawsuit testing the  
president’s authority to spy on Americans without warrants.

That suit involves two American lawyers accidentally given a “top  
secret” document showing they were eavesdropped on by the government  
when working for a now-defunct Islamic charity in 2004. That case is  
pending before Walker.