Vaughn Walker Dismisses The FISA Lawsuits... Or Does He?

Looks like Vaughn Walker's hands were tied by the law.

A federal judge on Wednesday threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

Chief Judge Vaughn R. Walker of Federal District Court in Northern California said that although consumer and privacy groups raised important constitutional issues in their claims, Congress had left no doubt about its “unequivocal intention” when it passed a measure last summer giving immunity to phone carriers in the wiretapping program.

The ruling represents a major victory not only for AT&T and other carriers, which faced potential damages of billions of dollars if they lost the cases, but also for intelligence officials in Washington who had fought assertively in their defense. Officials from both the Bush and the Obama administrations maintained that the cooperation of the phone companies has been vital to national security and that penalizing them for their participation would jeopardize important surveillance operations.

Lawyers for the plaintiffs, led by the Electronic Frontier Foundation, a privacy and civil liberties group, said they would appeal to the United States Court of Appeals for the Ninth Circuit.

They'll lose in the Ninth Circuit as well, given that they are bound by precedent, and in the Supreme Court as currently constructed, I'd find it unlikely that they'd turn over Congressional law. Although, they probably should, given the violations to the Fourth Amendment to the Constitution and the Congress taking over the functions of the judiciary in terms of holding companies liable.

However, in a separate ruling, Walker did cause some hackles to be raised inside the Justice Department.

A federal judge yesterday declined to penalize Justice Department lawyers for flouting his orders in a sensitive electronic surveillance case where the Obama administration sided with its predecessors to the alarm of civil liberties groups.

But U.S. District Judge Vaughn Walker did not give the government what it wanted, either. The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of President Obama's approach to protecting state secrets.

Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority.

Good for WaPo to focus on the full measure of Walker's rulings, which Marcy Wheeler discusses further. In addition, Wheeler notes that there's an additional case, Jewel, which sues Bush himself. While the Congress rules on holding the telecoms harmless, they did not do the same for the government.

Lest any further reassurance be necessary, the SSCI report states: “The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”

The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.

There's a lot going on with these lawsuits, and I would say that the Justice Department shouldn't close the file just yet.