June 4, 2009
Warrantless Wiretapping Case Dismissed, Appeal Planned
Judge Vaughn R. Walker (N.D. Cal.) yesterday dismissed the plaintiffs' claims in the consolidated cases against telecommunication providers for cooperating in the Bush administration's warrantless wiretapping program based on a section of the FISA Amendments Act of 2008 that grants immunity to private telecoms from civil liability for assisting in the program.
In dismissing the case, Walker rejected the plaintiffs' several constitutional arguments that the immunity provision violated separation-of-powers principles, the First and Fourth Amendments, and due process.
Strongest among these was the claim that the immunity provision violated the nondelegation doctrine. Plaintiffs argued that the immunity provision granted the Attorney General unfettered discretion in determining which cases to dismiss--that the Act lacked an "intelligible principle" to guide the AG's exercise of authority. See Whitman v. American Trucking Assn, 531 U.S. 457, 473-74 (2001) (holding that the Clean Air Act's directive to the EPA to set air quality standards at a level "requisite to protect public health from the adverse effects of the pollutant in the ambient air" was "well within the outer limits of our nondelegation precedents" and provided a sufficiently "intelligible principle" for the agency). (The immunity provision here prohibits civil actions when the AG "certifies" that a defendant-telecon cooperated, but the Act doesn't provide standards for the AG in exercising discretion to file in any particular case.)
Walker rejected the nondelegation argument, Slip Op. at 20-33, writing that the immunity provision "is not a broad delegation of authority to an administrative agency like the Clean Air Act or the Sentencing Reform Act; rather, its subject matter is intentionally narrow or 'focused' in scope." Slip Op. at 32. Moreover, "no form of rulemaking is at issue," and "'the shared responsibilities of the Legislative and Executive Branches in foreign relations may permit a wider range of delegations than in other areas.'" Slip Op. at 33 (quoting Owens v. Republic of the Sudan, 531 F. 3d 884, 893 (D.C. Cir. 2008)).
Despite upholding the immunity provision, Walker's ruling reflected concern with its scope. On
[The immunity provision] appears to be sui generis among immunity laws: it creates a retroactive immunity for past, completed acts committed by private parties acting in concert with governmental entities that allegedly violated constitutional rights. The immunity can only be activated by the executive branch of government and may not be invoked by its beneficiaries. [The provision] also contains an unusual temporal limitation confining its immunity protectiosn to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007.
Slip Op. at 10. And on nondelegation:
Congress could in this manner have included language in [the immunity provision] specifically directing the Attorney General to undertake review and to submit to the court the specified certifications. The absence of a congressional charge to the Attorney General in [the immunity provision] is all the more surprising for the fact that numerous other provisions of [the Act] contain directives to the Attorney General and other agency heads . . . .
Slip Op. at 31.
Walker dismissed the case without prejudice, because the immunity expired on January 7, 2007, and left the door open for an amended complaint (albeit with a higher pleading standard):
The court believes that the Attorney General has adequately and properly invoked [the immunity provision's] immunity to the extent that the allegations of the master consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-more-stringent pleading standards applicable in federal courts (see, e.g., Ashcroft v. Iqbal (citation omitted)), to allege causes of action not affected by the Attorney General's successful invocation of . . . immunity.
Neither Walker's ruling nor the immunity provision should affect the companion suit against the government, Jewel v. NSA, because immunity only extends to private telecoms. (I discussed the state secrets privilege in that case, with links to the pleadings, here.)
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