On April 3, the Department of Justice filed a motion to dismiss Jewel vs. NSA, in which the Electronic Frontiers Foundation (EFF) is suing the NSA on the behalf of AT&T customers in an attempt to bring an end to illegal surveillance. One of the given reasons for dismissal is a "sovereign immunity" claim which asserts the immunity of the government from lawsuits even when it has clearly broken the law; a "willful disclosure" of illegal surveillance is required before a lawsuit is possible.
The EFF press release has more information.
This seems to me an eery indication that the Bush policy of preventing lawsuits on the basis of "state secrets" may continue under the Obama administration. When the FISA legislation was passed, one of the arguments in favor given at the time was that it would shield companies from lawsuits and "keep the focus over legality where it belongs -- on the government." It now looks as though we may have greater obstacles than previously thought in our effort to hold our government accountable for illegal surveillance.
The analysis by Glenn Greenwald is crystalline, I recommend reading it in its entirety:
But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit, the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.
In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.
One of the most disturbing facets of the the Bush administration was the repeated insistence that the executive was above the rule of law and the will of the people. Electronic surveillance is both illegal and massively unpopular, which is why I find this motion so disturbing.
A comment in the discussion over at boingboing adds a new wrinkle to the whole issue:
I just read the government filing. It is written under the authority of MICHAEL F. HERTZ who holds the same position under Obama that he did under Bush, but on a temporary basis until his replacement is approved. This IS the action of a left over Bush crony.
I'm not a lawyer, nor do I profess to know the significance of Michael Hertz' position as Acting Assistant Attorney General. I want to avoid reaching any premature conclusions about the broader meaning of this document (mainly because I'm not qualified to make them!) but I do want to have a discussion about what steps we can take to pressure the Obama administration to reverse this stance.