I feel odd putting the attention-demanding "BREAKING" label on this diary, but I feel odder that this development hasn't been mentioned in any diary or story today.
For quite a while, during the summer lull after the primaries were decided and before the conventions began in earnest, one of the main topics of discussion on this website was Congress's decision to pass legislation amending FISA, the Foreign Intellegence Surveillance Act, giving immunity to telecommunications companies who had illegally participated in the warrantless wiretapping program.
Chief Judge Vaughn R. Walker of Federal District Court in Northern California today granted a motion dismissing the federal suits against the telecoms. And there is great mourning, one supposes in Founding Fathers Heaven.
The dispositive Order, which throws out over three dozen suits but leaves in place some wiretapping-related claims against the government and a suit by an Oregon charity, may be found here.
Judge Walker agreed that there were serious constitutional issues raised in the suits, but ruled that Congress had unequivocally barred suits against telecoms who had aided in this effort in FISAAA (the "FISA Amendment Act") and that it was within its rights to do so.
I'll let the New York Times take it from here:
Since Congress acted 11 months ago, Judge Walker considered more arguments and numerous filings on whether Congress could pass immunity retroactively and whether it had acted improperly in sidelining the judiciary and allowing the executive branch to "certify" that the phone companies had met the conditions for immunity.
In his ruling on Wednesday, Judge Walker said the legal protection carved out by Congress for the phone companies appeared unique in immunity law. "It creates a retroactive immunity for past, completed acts committed by private parties acting in concert with government entities that allegedly violated constitutional rights," he wrote.
But he said the objections of the privacy groups were not strong enough to override the wishes of Congress.
...
"I’m very surprised," said Bruce I. Afran, a lawyer in New Jersey representing a group of phone users. "It looks like a complete reversal of the positions that he took earlier. Judge Walker’s decision lets the government be the judge of its own actions, and that’s a pretty dangerous precedent."
Judge Vaughn's ruling will be appealed to the Ninth Circuit, and lucking into a good panel could conceivably reverse it. But this is a sad day for the Fourth Amendment and constitutional order, which is deeply threatened by retroactive immunity for completed acts, regardless.
For those who want background, I've done a quick search of some of the highest impact stories and diaries on this topic that I don't have the heart to summarize right now, but that it is worth our remembering:
Why Do You Need Immunity If You Haven't Broken the Law?, by Cenk Uyger, 10/13/2007
Obama and Clinton on Telecom Immunity Filibuster by MissLaura, 10/23/2007
It's Not Just About Immunity - UPDATED by Senator Russ Feingold, 1/17/2008
Telecom Immunity Codifies Bush's Unitary Executive Theory? by Patriot Daily News Clearinghouse, 1/24/2008
Telecom immunity is Bush immunity - the proof by dday, 3/1/2008
UPDATED Telecom Amnesty AND Expanded Eavesdropping Powers: Great Work, Congress! by Jesselyn Radack, 6/20/2008
FISAAA: prospective as well as retroactive immunity by Seneca Doane, 6/27/2008 (note: not high impact, and highly disputed analysis, as per my usual)
District Court: What FISA Did, What the FISA Capitulation Does by mcjoan, 7/3/2008
Congress finally defeats Bush, but set to vote to surrender anyway. by Kagro X, 7/7/2008
The "WHY" revealed by Russ Feingold (updated) by MotleyPatriot, 7/11/2008
Update 2: kovie says that you ought to check out this optimistic piece from bmaz at Firedoglake. Sounds like a plan!
Update 3: My own quick and dirty analysis, much of which will make sense only to lawyers and those who can decipher lawyerly shorthand, is now published in this comment below. Given that it's coming here so late in the game, I don't feel that it's appropriate to add it to the text, which might make it appear that people who recommended the diary recommend the analysis, which none of them (up until the moment I update this at 11:58 p.m. Pacific Time) have seen.
Update: This is unrelated, but if I hadn't just spent my diary allocation for the day, I'd be reporting on this happy story: "Katrina Victims Will Not Have to Vacate Trailers" ("Hurricane Katrina victims will be allowed to buy their temporary trailers for $5 or less.") So, I just thought I'd mention it here. Maybe someone else will write it up.