27 Feb Obama administration backs telecom immunity
San Francisco Chronicle, By Bob Egelko, February 27, 2009
The Obama administration has asked a federal judge in San Francisco to uphold a law aimed at dismissing suits against telecommunications companies that cooperated with President George W. Bush’s wiretapping program. In a filing late Wednesday, the Justice Department sought to dispel Chief U.S. District Judge Vaughn Walker’s concern that the law might violate the Constitution by giving the attorney general too much power to change the legal rules that govern the companies’ conduct. The law requires that judges dismiss suits by people claiming that the companies violated their privacy rights, as long as the attorney general certifies that the firms were helping an anti-terrorism program that the president authorized. “Under well-settled law, Congress may leave the decision of whether and when to make a certification to the attorney general’s discretion,” government lawyers wrote. They said Congress did not surrender its lawmaking power when it passed the so-called immunity measure for telecommunications firms last year. Instead, they said, Congress was directing the attorney general to shield companies from suits that endangered national security. Walker is presiding over nearly 40 lawsuits by customers who accuse companies of illegally sharing their phone and e-mail messages and records with the National Security Agency. Bush acknowledged in 2005 that he ordered the agency to intercept messages between Americans and suspected foreign terrorists without seeking approval from the courts or Congress. The law that Congress passed last summer, with the support of then-Sen. Barack Obama, authorized the wiretap program and sought to dismiss lawsuits against companies that had participated. Bush argued that telecommunications firms needed retroactive immunity from the lawsuits to encourage them to cooperate in future intelligence-gathering. Obama opposed immunity but said he voted for the law because it contained some limits on presidential power over surveillance. A statement Wednesday by Justice Department spokesman Matthew Miller seemed to reflect Obama’s lack of enthusiasm for the law. “The department is compelled to defend statutes as long as it can reasonably do so, and in this case the department was asked by the court to make a defense of the statute passed by Congress,” Miller said. Cindy Cohn, an attorney with the Electronic Frontier Foundation who represents AT&T customers in the lead case before Walker, said she was disappointed. “It’s unfortunate that the Obama administration has taken the position that it’s OK for the president to decide whether millions of ordinary Americans get their day in court,” Cohn said. “That’s exactly the kind of presidential power that candidate Obama was critical of the Bush administration for.” Last week, Obama’s Justice Department endorsed Bush administration arguments against an Islamic group’s challenge to the wiretap program and asked a federal appeals court to stop Walker from allowing the group’s lawyers to see a confidential surveillance document. In Wednesday’s filing, the department again adopted the stance of Bush’s attorney general, Michael Mukasey, who had asked Walker to dismiss the telecommunications suits without revealing the extent of any company’s cooperation. Cohn, on behalf of AT&T customers, argued that the new law improperly gives the attorney general absolute power to decide which companies to immunize for actions that were previously illegal. But Justice Department lawyers said courts have upheld laws giving the executive branch broad authority – for example, to determine whether a company is making excessive profits and should be subject to price controls, or to renew the U.S. embargo against Cuba if the president decides it is in the national interest.