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Retroactive immunity for spying goes on trial
Published: 2008-12-03

The U.S. government and the Electronic Frontier Foundation faced off on Tuesday in front of a federal judge over the constitutionality of the retroactive immunity granted to companies that cooperated with the Bush Administration's wiretapping program.

The case, which remains the most significant legal challenge to the outgoing administration's antiterrorism program of surveillance, will decide the fate of lawsuits pending against telecommunications firms that spied on their customers at the behest of the U.S. government. On Tuesday, the U.S. Department of Justice lawyers argued that the government antiterrorism activities need to remain secret to protect the country, according to media reports.

The EFF, in a statement published on Monday, argued that "the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."

After more than a year of political wrangling, Congress passed the FISA Amendments Act in July 2008. The legislation, which was quickly signed by President Bush, allows the U.S. government to obtain broad warrants to wiretap international communications to a target of interest in a terrorism investigation. The law also allows telecommunications companies that had previously cooperated with the Bush Administration in wiretapping their customers to receive immunity from lawsuits.

Revising the 30-year-old Foreign Intelligence Surveillance Act (FISA) preoccupied Congressional leaders and the Bush Administration ever since the New York Times revealed that the NSA had broadly eavesdropped on telephone and Internet communications in 2005. The agency had allegedly installed special rooms equipped with wiretapping hardware in important communications hubs with the blessing of major telecommunications firms. A whistleblower has claimed that AT&T had one such room, while a security consultant recently stated that a major cellular telecommunications company allowed a third party to directly connect, via a line known as the "Quantico circuit," into their systems.

The case argued in front of Judge Walker on Tuesday pits an AT&T customer against the company.

In a court filing released on Monday, Northern California District Court Judge Vaughn Walker asked eleven questions regarding the impact of the FISA Amendments Act and the unprecedented nature of its retroactive immunity.

"Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision?" the judge asked.

Judge Walker did not indicate when he expected to rule on the case, according to reports.

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Posted by: Robert Lemos
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