Earlier this week, I reported that the Obama administration is continuing Bush administration arguments that evidence of some government abuses is a "state secret" beyond the reach of the courts. As recently as last week, Justice Department lawyers made just that claim in a case involving allegations of warrantless wiretapping by the National Security Agency. But the Electronic Frontier Foundation, an online civil liberties group which represents plaintiffs in that case, says the Obama administration has also raised novel arguments that the government can't be sued even if it did engage in illegal wiretapping.
According to Tim Jones, EFF's Activism and Technology Manager:
Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.
The specific language referred to by Jones is found on page 13 of the government's motion to dismiss the wiretapping case (PDF):
As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. ...
Congress has expressly barred suits against the United States for damages and equitable relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting relief against only a “person or entity other than the United States.” See 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a). Congress enacted these express reservations of sovereign immunity in Section 223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
The only exception to sovereign immunity, the Justice Department argues, is "a willful, unauthorized disclosure of information by a Government agent." As a result, the government argues,"the Court lacks subject matter jurisdiction to grant plaintiffs’ claims for equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA."
Taken together, the federal government's position boils down to an argument that the evidence people require to prove that their rights have been violated by the government is a state secret that can be withheld from them, inherently crippling their case. And, even if they could acquire the evidence to prove their point, the government can't be sued for whatever it does in terms of wiretapping.
The Obama administration's position is really a remarkable one: It doesn't matter if the government engaged in violations of civil rights, since there's nothing anybody can do about it.
For anybody still hoping that a change of parties and presidents would represent a revival of respect for civil liberties, the government's actions represent a cold rain of reality.
email J.D.: civilliberties (at) tuccille.com
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Comments
"The Obama administration's position is really a remarkable one: It doesn't matter if the government engaged in violations of civil rights, since there's nothing anybody can do about it."
The only thing remarkable about the Obama administration's position is its openness. Most presidents who feel this way just don't say so in public.
Found on the old Obama campaign website under a heading "The Problem":
"Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court."
Well, well, Obama lied to America. What a surprise, yes?
"You lie! Obama is the Black Messiah! Obama walks on water! The Black Messiah never lies!"
Personally, I am challenged to find many real instances of Obama telling America the truth.
Okpulot Taha
Choctaw Nation
To paraphrase Newton, if Obama is able to reach further into totalitarianism than any president before him, it is only because he stands on the shoulders of a giant a****e.
I will never forgive Bush for being an enabler for the enemies of liberty, in direct contradiction to what his party claims to stand for. As for Obama, he's no better, of course, but at least it was no surprise.
These traditionally "liberal" groups, like the ACLU, are catching on pretty quickly to the fact that this guy is not what he represented himself to be. I'm not sure what it's going to accomplish in the end. We're stuck with this liar and all of his fraud.
Great column as usual JD, and I dugg it. Sorry I have been so silent lately but I have had a month and a half of trial work but also have decided to concentrate more of my viral marketing at Examiner and have been recruiting more writers. Please e-mail me at mikedevinelaw at yahoo dot com and I will come up with some topics to duel on.
Brutus may be right about the only remarkable thing being Obama's openness, but we should not take this as a good thing. If the government is so confident as to be this openly unconstitutional and authoritarian, we are even worse of than when they still felt that they had to hide it from us. Now they aren't giving us any credit at all. Which makes sense. Despite the articles, the TEA Parties, etcetera, people still aren't provoked enough to get off their lazy cans and do something about it. Why WOULD the government bother trying to keep it a secret? Americans PREFER their corruption out in the open, for all to participate in and condone.
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