Ninth Circuit Upholds Statute Giving Immunity In Spying Case

One of the Christmas presents the major telecommunication companies received last week is the opinion Hepting v. AT&T Corp. out of the Ninth Circuit Court of Appeals.  That case considered whether Congress had the authority to retroactively immunize AT&T and others for cooperating with the government over an alleged warrantless eavesdropping program.  This was reflected in amendments passed by Congress to the Foreign Intelligence Surveillance Act in 2008, notably § 802 authorizing the Attorney General to certify to a court that the telecoms acted within one of five categories that would trigger immunity.  The District Court dismissed the constitutional claims against the statute, and the Ninth Circuit upheld that finding.

The Court dismissed the Separation of Powers argument.  Hepting argued, among others, that the Attorney General became the ultimate adjudicator under the statute and that Congress could not grant the AG that authority without standards that guided his discretion.  The Court noted that other legislation granting discretionary powers to the executive was upheld in more vague circumstances and that Congress gave the AG five specific sets of circumstances that could be invoked to trigger immunity.  Moreover, the rationale the AG used was subject to in camera review by the Court as to its substance.  The nature of national security does not lend itself necessarily to independent challenge by a plaintiff.  That does not violate the Due Process Clause according to the Court.

The Court also noted that the statute may have immunized the telecoms, but it did not immunize the government from suit over the underlying eavesdropping programs.  This was based on the explicit terms of the statute and its legislative history.  The District Court had dismissed plaintiffs’ claims against the government and these were reinstated.  The Electronic Frontier Foundation states in its press release on the Hepting decision that the government will likely invoke the state secrets doctrine in the case going forward against it, and that “this argument has already been rejected in other similar cases.”  I’m not so sure about that.

I wouldn’t consider Wikipedia as a hotbed of legal authority, but the entry on state secrets states that courts have rejected the doctrine only four times since 1953.  The case by case summary suggests the courts have accepted the state secrets privilege in circumstances that are way more egregious than those presented in this case.  Moral authority may be one thing, but legal precedent seems to be something else.  [MG]