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Judge Dismisses Wiretapping Cases Against Telecoms, but Al-Haramain Can Proceed

A federal district court judge in California yesterday dismissed a slew of lawsuits filed against telecommunications companies that allegedly helped the U.S. government engage in warrantless wiretapping.

Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.

Although the customers who sued, represented by the Electronic Frontier Foundation and the American Civil Liberties Union, claimed that the immunity provision of the law was unconstitutional, Judge Walker disagreed.

Significantly, however, he noted that at least one part of the argument presented “a close question,” leaving open the possibility that his decision could be reversed on appeal.

The lawyers who brought the case said yesterday that they plan to pursue that course.

“We’re deeply disappointed in Judge Walker’s ruling today,” Cindy Cohn, legal director of the Electronic Frontier Foundation, told Keith Perine at CQ Politics. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

Judge Walker also specifically wrote that his decision in the case against the telecoms does not foreclose other cases based on similar facts filed against the government.

“The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities,” Vaughn wrote.

Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.

A hearing on the merits of the case — whether the government broke the law when it wiretapped Al-Haramain and its lawyers without a warrant — is scheduled for September 1.

A ruling from Judge Walker last July that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA, does not bode well for the government.

Jon Eisenberg, Al-Haramain’s lawyer, summed it up at the time this way: “Judge Walker ruled, effectively, that President George W. Bush is a felon.”

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