Feds Insist That As Long As They Break The Law In A 'Classified' Way, They Can Never Be Sued

from the please-explain-how-that-works dept

Thu, Sep 1st 2011 1:11pm — Mike Masnick

The EFF has been involved in a series of lawsuits against the government and telcos concerning the almost certainly illegal warrantless wiretapping program that the US has been using for many years, which was exposed by the NY Times and Wired a few years back. The US government more or less admitted what it was doing was entirely illegal when it passed new legislation that (a) tried to make the warrantless wiretapping legal and (b) granted telcos retroactive immunity from any lawsuits for helping the government. Because of these things -- along with the US's insistence that these lawsuits would reveal state secrets -- all of the lawsuits have been dismissed. However, the 9th Circuit appeals court is now considering restating them after an appeal via the EFF.

What's pretty stunning about the federal government's position is that it seems so farcical on its face. It seems to be claiming that (1) as long as the government breaks the law in a classified way, that can never be subject to litigation and (2) if lawsuits concerning illegal activity would be a burden on those who participated in the illegal activity, then such lawsuits should not be allowed. I'm not kidding. A couple of quotes:

�Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,� Kellogg said.

Department of Justice Attorney Thomas Bondy urged the panel of judges to abide by Congress� wishes. He repeated over and again that litigating the allegations would expose national security secrets.

�Who was or who was not surveilled, that�s classified,� he said. �What any particular carrier did or did not do, that�s all classified.�

But combine those two things and you're basically saying the government has full impunity to do whatever the hell it wants and can never face any legal consequences. On top of that, those who help the government can never face legal consequences either. How does that possibly make sense? It appears that at least two of the judges on the three judge panel had significant concerns about this:

Judge Michael Daly Hawkins wondered aloud, �If these plaintiff�s don�t have standing, who would?� Judge M. Margaret McKeown said the �concern� she had was that the suits� dismissal �cuts off the plaintiffs � from ever pursuing a claim.�

But, those random musings aren't necessarily indicative of how the court will rule. I am hopeful they realize the plainly ridiculous state of the government simply being able to hide any illegal activity behind a claim that "it's classified," and will allow at least some of these cases to go forward.

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Filed Under: classified, doj, immunity, legality, us government, warrantless wiretapping

36 Comments

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The eejit (profile), 1 Sep 2011 @ 12:38pm

Maybe these guys should attend the Kindergarten party organised for earlier today.
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:Lobo Santo (profile), 1 Sep 2011 @ 1:16pm

Years, man!!
I've been saying it for years: It's only illegal if you get caught.
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Anonymous Coward, 1 Sep 2011 @ 1:22pm

Re: Years, man!!
And once you are caught, now you can say... if you try to sue me then all of this stuff that WE classified will be given to the enemy and a lot of scary bad stuff will happen. So, we are actually doing you a favor by not letting you sue us. Please shut the fuck up and gives us more money so we can continue to keep you safe.
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Dark Helmet (profile), 1 Sep 2011 @ 1:22pm

Re: Years, man!!
Yeah, but now it's even better, because they're asking to make it illegal to catch people.

Fucking brilliant, these subhuman ass-trumpets....
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PrometheeFeu (profile), 1 Sep 2011 @ 1:41pm

�Congress made a considered decision that it would be unfair if [the telcos] were subject to potential suits and ruinous liability,�

I think that is fair. The government is a bunch of guys with guns. If the telcos had not cooperated with such an illegal spying program it is quite likely that the feds would have retaliated. Ultimately, the ones responsible for this are the officials who ordered and implemented the spying program. Those people should be arrested, fined, subject to civil liability and then thrown in jail.
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MrWilson, 1 Sep 2011 @ 1:42pm

The criminal equivalent
The criminal equivalent of this would be for a defendant accused of theft to say to the judge, "you can't prosecute me for theft because being held responsible for my crimes and going to jail would stop me from being able to continue my criminal acts and therefore would pose too great a burden upon me. Even standing trial requires me to spend my ill-gotten gains on lawyers and that's not fair!"
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Justin (profile), 1 Sep 2011 @ 1:50pm

Someone had to make the decision
Some one had to make the decision of breaking the law, we need to stop letting the government or Corporation tag get the way, and punish the people who are truly responsible for the crimes.
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Joe Publius (profile), 1 Sep 2011 @ 1:53pm

Secrets are the greatest tool of tyrants. By its very intent it's impossible to know how much wrong has been done under in the name of "that's classified".

In the end, they want those magic words to convey an immunity that no free society should allow.
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Anonymous Coward, 1 Sep 2011 @ 1:58pm

Judges are pretty bright on the whole
They know where their paychecks come from.
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ts, 1 Sep 2011 @ 2:24pm

Checks and balances... great idea, but it's obviously not working. Apparently the founding fathers didn't anticipate all three branches of government being filled with incompetent sellout idiots.
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Anonymous Coward, 1 Sep 2011 @ 2:29pm

Re:
I think the problem is that the check$ are still not big enough to tell if the balance$ are working.
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AR (profile), 1 Sep 2011 @ 2:44pm

Re:
One thing that you may not realize is that by the telcos NOT refusing to do it, they then become complicit in the illegal act. I believe (but could be wrong) that in are current military, if an illegal order is given, it is the persons duty to disobey it. An example could be; If an officer in the military orders the torcher or murder of innocent people, the subordinates that performed the act are then guilty of the same crimes as the one giving the order. This is how it worked for the Nuremberg trials.
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mikey4001 (profile), 1 Sep 2011 @ 2:58pm

Breaking News: The government has just declared that it is logically impossible for those who create, buy, or enforce the law to break the law. One well respected judge was quoted as saying "I AM THE LAW!"

This Just In: The price of bullets has risen ten-fold overnight with many retailers reporting shortages.
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Anonymous Coward, 1 Sep 2011 @ 2:59pm

Re: Re:
torcher... LOL

The Nuremberg trials were after the War. I guess if the current powers in this country ceased to be and was replaced by a more just, then the execs at the telcos may begin to piss and shit themselves a bit. Most likely they would be more concerned with other things they have done though. Just my opinion.
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PRMan, 1 Sep 2011 @ 3:50pm

Re:
You mean like Sprint and Verizon and Qwest, who didn't cooperate?
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Squirrel Brains (profile), 1 Sep 2011 @ 4:16pm

Re: Judges are pretty bright on the whole
You means those judges that have life tenure and can't have their pay decreased?
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Michael, 1 Sep 2011 @ 4:28pm

easy answer
If you are in a position to leak classified data, leak it. The government can spy on the people, the people can expose their secrets. Fair play.
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Qritiqal (profile), 1 Sep 2011 @ 4:41pm

Re: Re:
You can spell Nuremberg but not torture?
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PrometheeFeu (profile), 1 Sep 2011 @ 4:45pm

Re: Re:
I do understand that. However, I'm ready to cut some slack to private citizens for not doing the right thing when the feds come knocking at their door. We do have legal precedent that when coerced, you are not responsible for your own actions. Was there coercion? Definitely some amount of coercion was involved. The real question is how much?
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PrometheeFeu (profile), 1 Sep 2011 @ 4:49pm

Re: Re:
Hm... That's interesting. I did not realize those guys stayed out of the program. Yet, it is easy post-hoc to say there were no consequences for Verizon, etc... However, I would not have put it past the government to issue veiled threats to get what they wanted. (Perhaps a simple mention that "tax season is coming and it would be a shame if tax inspectors swarmed your offices...") Good for Verizon, Qwest and Sprint who resisted. I still find it hard to fully blame someone who caves before the guys with guns who are demonstrating a desire to break the law.
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PrometheeFeu (profile), 1 Sep 2011 @ 4:51pm

Re: Re:
Also, if I recall correctly, (and I may be wrong about this) while saying you "just followed orders" was by no means helpful, saying "I was fearing I might get shot if I didn't cooperate" was definitely something that helped attenuate responsibility at Nuremberg.
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AR (profile), 1 Sep 2011 @ 5:08pm

Re: Re: Re:
But the point is the same. They are just as guilty as the Government for violating the 4 amendment. What is supposed to happen is when congress passes a law it is subject to judicial review and up to the Supreme Court to establish its constitutionality. What they are attempting is to circumvent the constitution itself on checks and balances. By not letting these cases go to trial and they are avoiding the Supreme Court and the constitutional question. All this under the guise of national security.
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Anonymous Coward, 1 Sep 2011 @ 5:36pm

Re: Re: Judges are pretty bright on the whole
The ones who have life tenure and can't have their pay decreased just so long as they don't buck the system.
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A Guy (profile), 1 Sep 2011 @ 7:09pm

Kafka would be proud
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Jay (profile), 1 Sep 2011 @ 7:39pm

Michael Kellogg, the carriers� attorney, argued the immunity legislation was the right thing for the nation�s carriers, which could go bankrupt under the weight of defending the accusations in court.

Hold the phone...

AT&T has a revenue stream of $124B. Verizon? $106B. Just to be fair, let's look at Comcast who has $38B and Time Warner ($18B). All of this has been taken from wikipedia on 9/1.

Now let's look at how much they spend lobbying to Congress with their revenue...

AT&T - 30% more on lobbying but total money in expenditures? $12 million dollars for favorable legislation

Verizon - $9 Million

Comcast - $11 Million

Time Warner - $4 Million

Now out of all of these companies, that give a lot of money to Congress, I find it quite odd to hear that they're worried about making them bankrupt.

AND PLEASE! SOMEONE GET THOMAS BYRON A REAL TIE INSTEAD OF THAT PINWHEEL!
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AR, 1 Sep 2011 @ 8:11pm

Re: Re: Re:
Ok, ok I cant spell. I but didnt see it until after it posted.

TORTURE
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velox (profile), 2 Sep 2011 @ 4:24am

The "bankrupt" hyperbole was over the top, but on the other hand, maybe that's not so beyond the pale if they have spied on each and every one of us. Will we all be found to have a claim?
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Edward Teach, 2 Sep 2011 @ 6:16am

NSA reprisals
Qwest's then-CEO, Joe Nacchio, went to trial for insider trading. During his trial, some evidence came up that the NSA did punish Qwest for this refusal: https://secure.wikimedia.org/wikipedia/en/wiki/Qwest#Refusal_for_NSA_spying
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WysiWyg (profile), 2 Sep 2011 @ 7:21am

Re: Re: Re:
Definitely, but then again we're not talking about "private citizens", we're talking about big corporations with (presumably) lawyers that are ready to jump into the fray if needed.

No, they should have resisted, they should have raised the alarm and they should have taken the feds to court (if the feds didn't back down).
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WysiWyg (profile), 2 Sep 2011 @ 7:42am

Re:
Not to worry, if you do have a claim, you can all enjoy the full dollar (credit on your next bill of course... if you remember to check) that you're awarded.

Of course the lawyers gets about a million or so...
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pjcamp (profile), 2 Sep 2011 @ 7:48am

this is news?
Maher Arar was kidnapped, sent overseas and tortured. His lawsuit was tossed out of court because it would have revealed national security secrets.

German citizen Khalid el-Masri was similarly kidnapped and tortured in a case of mistaken identity. He was then released on a desolate road in Albania with no money, no identification, only the clothes on his back, and no passport. He was detained there as a terrorist due to his unkempt appearance and general lack of documents. He eventually sued (by video -- same mistaken identity resulted in him being denied entry to the US) which suit was dismissed. This suit was dismissed without being heard because it "would present a grave risk to national security."

The state secrets exception has a long history of being used to cover up government embarrassment. You can read more about it here:

https://secure.wikimedia.org/wikipedia/en/wiki/State_secrets_privilege
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Squirrel Brains (profile), 2 Sep 2011 @ 7:56am

Re: Re: Re: Judges are pretty bright on the whole
They only way to get rid of them is to impeach and convict them in the House and the Senate. Even with lots of lobbyist's money, I doubt there would be enough political will to go through with it.
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Derek Oldham, 2 Sep 2011 @ 8:15am

Classified lawbreaking
Sure ! And pigs can fly without the benefit of TSA pat-downs !
You are MY government. I am NOT your servant. GTAFFAARD.
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Jay (profile), 2 Sep 2011 @ 9:02am

Re: this is news?
Do you have a link to those stories?
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Jay (profile), 2 Sep 2011 @ 9:03am

Re: Re: this is news?
I'm thinking other than the wiki article...
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zeev, 4 Sep 2011 @ 8:38pm

ironic isn't it.
the same legal industry whose gross neglect , and desire to make money by fees, has led to the banking and mortgage nightmare we have before us=----has some good side to it.

here, there are lawyers working in a good way to promote restraint of government. this is the kind of work that earns the legal profession it's reputation for being an essential component of a thriving classically liberal and libertarian society. lawyers are supposed to traditionally be part of a society that restrains criminal behavior by government, at the highest levels.

unfortunately over the past 2 decades of over-lawyering , nuisance lawsuits, and corporate and insurance lawyering, the american legal industry has mostly had a parasitic effect upon most of america. i'm glad there are still some lawyers fighting the government for basic liberty of american citizens from government coercion.
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