Obama administration to support telco immunity over domestic spying

Published 16 January 2009

Eric Holder, nominee for attorney general, says the incoming Obama administration will support congressional legislation immunizing U.S. telecommunication companies from lawsuits about their participation in the Bush administration’s domestic spy program

This may be a disappointment to some, but a boost to the telecom sector: The incoming Obama administration will defend congressional legislation immunizing U.S. telecommunication companies from lawsuits about their participation in the Bush administration’s domestic spy program. David Kravets writes that this was the assessment Thursday by Eric Holder, President-elect Barack Obama’s nominee for attorney general, who made the statement during his confirmation hearings before the Senate Judiciary Committee. A court challenge questioning the legality of the legislation is pending in U.S. District Court in San Francisco — where the judge in the case wanted to know what the Obama administration’s position was. “The duty of the Justice Department is to defend statutes that have been passed by Congress,” Holder told Senator Orin Hatch (R-Utah), who asked whether the Obama administration would continue the legal fight to uphold the legislation that the Electronic Frontier Foundation is seeking to overturn. “Unless there are compelling reasons, I don’t think we would reverse course,” Holder added.

At a San Francisco hearing in the Electronic Frontier Foundation’s (EFF) case last month, U.S. District Judge Vaughn Walker wondered aloud whether the incoming Obama administration would continue to defend the legislation, which passed in July. Obama opposed immunity but voted for it because it was included in a new spy bill that gave the Bush administration broad warrantless-surveillance powers. “We are going to have a new attorney general,” Walker said from the bench, wondering whether he should delay a decision, pending guidance from Obama. “Why shouldn’t the court wait to see what the new attorney general will do?”

Kravets notes that Holder’s comments came the same day a secret federal appeals court, the Foreign Intelligence Surveillance Court of Review, released a declassified opinion approving 2007 legislation that gave the government broad powers to eavesdrop on international communications — even those in the United States — without warrants. The court, hearing a challenge to the Protect America Act from a telecommunications company it did not name, said the Fourth Amendment to the U.S. Constitution was not breached because the right to be free from unreasonable searches did not apply to foreign intelligence gathering.

The Justice Department lauded the opinion, which was rendered in August but just released Thursday after it was declassified. “The Court of Review upheld the lawfulness of the directives, concluding that the surveillance at issue fell within the foreign-intelligence exception to the warrant requirement and was otherwise reasonable under the Fourth Amendment,” the department said.

Kravets writes that the Bush administration had argued that the original case should be dismissed on the grounds that it threatened to expose government secrets, a legal privilege judges routinely rubber-stamp. The EFF, in a bid to revive the lawsuit, challenged the immunity legislation on the  grounds that Congress was prohibited from legalizing what the EFF termed was unconstitutional activity by the telecommunication companies. Walker’s decision on the immunity legislation is pending.