Thursday, February 26, 2009

Obama administration defends telecom immunity

Obama administration defends telecom immunity in new brief

Rachel Oswald

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The Obama Justice Department continues to stand behind a Bush era law meant to prevent lawsuits against telecommunications companies accused of illegally sharing private customer information with intelligence agencies.

In a brief filed late Wednesday obtained by Raw Story, the Department of Justice provided its views to Chief U.S. District Judge Vaughn Walker, after the San Francisco federal judge questioned the constitutionality of the wide-sweeping law and whether it gives the U.S. Attorney General too much power in deciding whether a company is immune from lawsuits after it has shared information with federal agents.

The law was specifically designed to protect companies who participated in government wiretapping programs from legal claims and is one that President Obama supported as a senator when it was approved by Congress last year.

"Electronic communication service providers play an important role in assisting intelligence officials in national security activities. Indeed, the intelligence community cannot obtain the intelligence it needs without assistance from these companies," the Administration's 18-page brief says.

"The committee was concerned that, without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation," it adds.

It continues: "The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation," directly citing the 2008 findings of the Senate Select Committee on Intelligence Report.

According to the Justice Department, the law requires a judge to dismiss a wiretapping lawsuit against a telecommunications company if the attorney general explains the firm's role to the judge in a confidential statement.

"The department is compelled to defend the statute as long as it can reasonably do so, and in this case the department was asked by the court to make a defense of the statute passed by Congress," DOJ spokesman Matthew Miller said in a statement accompanying the submission of the brief. "The [Foreign Intelligence Surveillance] Act passed by Congress in 2008 is the law of the land, and as such the Department of Justice defends it in court."

The Justice Department brief was filed in support of the department's motion to Walker to dismiss or to provide summary judgment in the lawsuit against AT&T for sharing customer telephone and e-mail records with federal agencies. The constitutionality of the law is defended on the grounds that the attorney general is only carrying out powers specifically given to him by Congress.

The Department asserts that the "presumption of constitutionality becomes even stronger" when Congress delegates authority to the executive branch in matters of national security or foreign affairs.

"Congress supplied the requisite intelligible principle by specifically and narrowly defining the conditions under which the Attorney General may make a certification, and the statute's legislative history provides further guidance, should any be necessary," the brief reads. "Under well-settled law, Congress may leave the decision whether and when to make a certification to the Attorney General's discretion."

"Congress provided the Attorney General an intelligible principle by enumerating specific and narrow circumstances in Section 802 [of the Patriot Act] that control whether and when he may make a certification," it continues. "The Act permits the Attorney General to certify facts to the court only when there is a pending civil action in which a person is alleged to have 'provid[ed] assistance to an element of the intelligence community.'"

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