Intellectual Property Law

SAN FRANCISCO -- The constitutionality of retroactive immunity for telecoms that helped Bush spy on Americans got its day in court Tuesday, a little less than a year after senator Christopher Dodd all but shuttered Congress with an ultimately futile one-man stand against the idea.

Tuesday's courtroom showdown in San Francisco lacked the fireworks of Dodd's fiery oration, but the judge handling the case gave some indication that he may take over as the one-man anti-immunity crusader.

"In essence that gives the attorney general carte blanche to immunize anyone." Walker said, wondering what odd creature Congress had fashioned. "What other statute is like this statute?"

Lawyers for the Electronic Frontier Foundation told Walker that Congress had no right to give the attorney general a magic wand to make cases against the telecoms go away just by telling the judge a little bit about what happened. The group is suing AT&T for helping the government spy on Americans' internet and phone usage.

"We have a right to an injunction against the telecoms," EFF's legal director Cindy Cohn said. "They are the gatekeepers ... They have an independent duty to protect Americans' privacy."

A Democratically-controlled Congress bowed to election-year political pressures in the summer, legalizing much of the formerly lawless spying and creating a get-out-jail-card for the telecoms being sued for helping with the spying.

Congress knew exactly what it was doing and made "heartland" law, according to Justice department attorney Carl Nichols.

"Congress realized these cases posed a risk to national security," Nichols said. "Congress created a focused response or focused defense."

Much of the arguments focused on whether Congress violated the separation of powers doctrine; whether the fact that the EFF could and is suing the government over the spying makes immunity constitutional, and the legality of a provision that lets the attorney general give immunity to companies that didn't even help with the spying.

Judge Walker has long seemed keen to reach a point where he can rule on the legality of the surveillance program -- something the government would hate.

He seemed to take most issue with the portion of the immunity provision that let the attorney general tell a judge to dismiss a case because there was no surveillance. That, Walker indicated, was unprecedented and alluded that the provision could be used to hide shenanigans.

Walker also wondered from the outset why they weren't waiting for the Obama administration -- perhaps forgetting that Obama voted for the bill.

The DOJ's Nichols not so subtly told Walker to go read the classified materials filed with the court in September and dismiss the cases even before Obama takes over the White House.

"Congress has mapped out what the court should do," Nichols said, going on note the statute says "shall."  "If the attorney general files a disclosure, the court shall review it.

Walker gave no indication he planned to follow Nichols' prescription and did not say when he would rule.

See Also:

• Feds to Judge: Don't 'Second Guess' Bush Domestic Spy Program
• Obama Will Fight For Wiretap Immunity, Bush Lawyer Tells Judge ...
• In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms ...
• Telecom Spying Amnesty Unconstitutional, EFF Tells Court
• Attorney General Pulls Immunity Trigger, Denies 'Dragnet ...
• Appeals Court Punts on AT&T Spying Case Appeal