After reading throughout the Netroots some of the concern vis a vis the latest Motion to Dismiss filed by the Department of Justice in the FISA lawsuit, I thought I would give my perspective, as a local government attorney, on what is going on.
Regardless of the context, if you work in government as an attorney, and you litigate (i.e. go to court), the first thing you do if you are sued is to look for a way out of the lawsuit. It's that simple. And there are plenty of immunities available to governments, whether federal, state, or local, to accomplish that goal.
I put the disclaimer up front: I'm no expert on FISA, the current lawsuit, or even all the immunities available to federal government at this point. But I have read the Motion to Dismiss in the case (available here), and I give some of my very basic thoughts below...
Fact #1: This is a civil lawsuit for money damages and/or equitable relief. Plain and simple, the Plaintiff seeks monetary damages against the Defendants. I.e., you committed a wrong, and the only way to make up for that wrong is pay money. Or in the alternative, it seeks equitable relief -- i.e., an injunction -- to prevent a future wrong.
Fact #2: The Motion to Dismiss was filed by the government Defendants in their official capacity. Two important points here. First, this is a Motion to Dismiss claims, or in the alternative, for summary judgment. I can tell you as a matter of legal practice, any time a government is sued, there is a Motion to Dismiss filed, primarily to see if you can "knock out" at least some of the claims, or if you get lucky, the whole lawsuit. Second, the "official capacity" part is key. Simply stated, DOJ is moving to dismiss Defendants "The United States of America," "President Barack Obama," "Attorney General Eric Holder," etc. in their official capacity. Official capacity is just like it sounds...you've been sued by virtue of the fact that a. you are a government agency or b. you work for that government agency in some official way.
Fact #3: As a general rule, governments and government official have immunity for acts in their official capacity. This is nothing new. It is the concept of "sovereign immunity" which has been around for hundreds of years. The general rule is established so that Joe Blow cannot simply "sue the government" for every perceived wrong that government does, because it would not be in the public interest for ALL for the government, as an entity, to have to defend said lawsuits or pay out damages in its official capacity. However, and this is critical, this does NOT mean a Plaintiff can't sue a government employee for wrongful acts committed in the scope of their employment in their personal capacity. Indeed, in the lawsuit at hand, DOJ makes clear that they are filing this Motion for the government Defendants sued in their official capacity, despite the fact that many, many more are sued in their official capacity. Keep in mind, there are immunities available to those in their personal capacity as well, which DOJ also raises. But those immunities are generally not as strong as the immunity provided for those acting in an official capacity.
Fact #4: Asserting a defense in a lawsuit does not in any way equate official government policy. Trust me on this one. I've had to assert defenses to lawsuits early on in the stages of litigation, as is the case in the FISA lawsuit. And it does NOT mean in any way that it is some sort of policy declaration. It is doing what is necessary to defend my client from the relief sought by the Plaintiff. Plain and simple. And that is especially true at the Motion to Dismiss stage. Indeed, these issues are going to be litigated not only at the trial stage, but at the appellate stage. And believe me, DOJ is going to continue argue immunities, because that's their job. Not only in this lawsuit but in all future lawsuits. It is their job not to create policy, but to defend their client. They are not simply going to roll over and say, "OK, you win, we'll pay you a truckload of money." Not going to happen. And certainly not going to happen at this early stage of the game.
Now, it has been suggested that someone the new assertion of sovereign immunity made via the Patriot Act, FISA, etc. is breathtaking and such, but I just don't see it the way others do. I look at it from the perspective of the government lawyer, and if there is another argument to be advanced to defend my client on immunity grounds, even if that argument hasn't been advanced before, I'm going to use it. And I'm reasonably certain that is what the DOJ attorneys are doing...their job to defend their client. It has also been suggested that Congress, in passing the telecom immunity in the FISA revision claimed "Well, you can always sue the individual government actors," and that somehow, this Motion goes against the grain of that claim. This Motion doesn't change that one iota. Again, this is a Motion filed on behalf of the United States of America and related government Defendants, in their official capacity. If a Plaintiff finds that Wendy Wiretapper, working for NSA, violated a Plaintiff's civil rights, that lawsuit can still continue, but still be subject to personal immunities for official acts.
I am still wary of where this is going. Clearly, I'd like some more policy assurances from the Obama administration with respect to the wiretapping issue, and changes in the law.
But you can't blame the lawyers for defending their client. And you can't translate what they are doing to defend their client as a policy decision. At least not yet.
UPDATE: Some people have stated that "why doesn't DOJ simply settle the case" or something to that effect. Just wanted to point out that this is the BEGINNING of the lawsuit, not the END. In fact, should DOJ's Motion get denied, we have no idea where this lawsuit goes. There may be more incentive to settle at that point. Fact is, we just don't know at this point. But I would NOT expect them merely to settle the case just off the bat. That is rarely, rarely done.
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