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U.S. District Judge Vaughn Walker had a busy week, hearing from lawyers for EFF arguing against telco amnesty and from lawyers in Al-Haramain Islamic Foundation v. Bush, who are suing the government for warrantless electronic surveillance.

To recap, EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose records were illegally handed over to the NSA in the warrantless wiretapping program. All of the 46 outstanding lawsuits against the telcos have basically been consolidated in this case, with EFF and co-coordinating counsel along with the American Civil Liberties Union (ACLU). At issue now is whether the FISA Amendments Act passed by Congress this summer is Constitutional.

The Al-Haramain case gets at the warrantless wiretapping from another angle. Al-Haramain is an Islamic charity organization in Oregon that was under investigation for possible links to terrorism. Based in part on information obtained through illegal surveillance, the Bush Treasury Department shut Al-Haramain down. At the time, however, the organization's lawyers didn't know about the surveillance, that was revealed when the government accidentally released a highly classified document to Al-Haramain's attorneys. The arguments Walker heard this week were about whether his case against the government could go forward, and with what evidence.

Back to this week's action. On the telco amnesty front, the EFF's lawyers 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. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.

That's a tough case for EFF to make. While Walker seemed skeptical about the new law:

Still, Walker was concerned that the immunity law, which also authorized continuing the admitted eavesdropping, gives the attorney general too much power.

"It gives the attorney general carte blanche to immunize anyone who in his judgment or view should be immunized from possible liability," Walker said from the bench.

he suggested that the remedy for EFF wasn't in his court:

"What we've seen is that this is an administration that has boasted that ... it's not bound by the other branches in conducting surveillance," said Richard Wiebe, a San Francisco solo representing the plaintiffs.

But that argument should have been made to Congress, Walker said.

"Congress made a determination that [suing the companies] is not in the national interest and gave us this statute," he said. "I'm the wrong person to be making that argument to; call up Sen. [Dianne] Feinstein."

Walker did express concern with what he called the "awfully broad" latitude the act gives to the attorney general.

Under the new law, courts must dismiss suits against telecommunications companies if the attorney general issues a special certification letter. But Walker can overrule the letter submitted in the Hepting case if he finds that it is not supported by "substantial evidence," a burden for which he sought clarification from the attorneys.

In determining what constitutes "substantial evidence," EFF's lawyers argued for another hearing or adversarial proceeding, while the DOJ said Walker should make that determination in discussions just with the government. Walker is seemingly skeptical enough of the DOJ's position to rely soley on their arguments, so EFF could have another shot at convincing him.

The Al-Haramain case might have more promise. Walker has previously ruled on Al-Haramain in July, when he dismissed the case in because of a catch-22--lawyers had received classified information that they had been wiretapped illegally by the government, but couldn't use the information they had to prove it in court. However, Walker ruled that the Al-Haramain could refile the complaint if they could provide nonclassified evidence. They made their case:

"First, the FBI was investigating the Al-Haramain Islamic Foundation in 2004, FBI agent Gary Bald testified to that in public; next, the FBI used warrantless surveillance ... in pursuit of their goals, Director [Robert] Mueller testified to that before Congress; next, in February 2004, the Department of the Treasury issued its initial designation of Al-Haramain [as subject to an asset freeze]," Eisenberg said.

That initial designation did not mention Osama bin Laden, he said, so the fact that the Treasury alleged "direct links" to the al-Qaida mastermind later that year is circumstantial evidence that the government listened in on calls between Al-Haramain's lawyers and foreign nationals that mentioned bin Laden.

Coppolino countered that Al-Haramain still lacked "the most fundamental element of proof," which only the government could reveal.

But Walker seemed inclined to let the public evidence stand as proof, asking Eisenberg to lay out how the case would proceed if he granted Al-Haramain "aggrieved" status.

"It's quite conceivable that information that would otherwise be shielded under the state secrets privilege would be disclosed if FISA pre-empts," Walker said.

Ultimately, Walker is unlikely to rule on these cases before Bush leaves office, leaving the unknown question hanging: what will Obama's Justice Department do if he rules against the government in either case? The Bush DOJ asserts they'll do just like the Bush DOJ:

"We are going to have new attorney general," Walker interjected in Tuesday morning's hearing in a San Francisco courthouse. "Why shouldn't the court wait to see what the new attorney general will do?"...

"The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute," Nichols said. "It's very, very unlikely for a future DOJ to decline to defend the constitutionality of this statute."

Eric Holder, the attorney general to be, might have different ideas. He has denounced the illegal surveillance program, but President-elect Obama voted for the potentially unconstitutional legislation that the EFF is trying to strike down.

The illegal spying program combined with the Bush torture program, is the thorniest issue outside of the economy that Obama inherits. At issue is whether the Bush administration has permanently set the nation down a path of being ruled by men rather than ruled by law. The Obama administration can and must reverse course.

Originally posted to Daily Kos on Fri Dec 05, 2008 at 01:20 PM PST.

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