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Feds Can Spy on Americans Warrantless

September 04, 2012

By Tabitha Naylor, Contributing Writer

On August 7, a three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed a suit that challenged President George W. Bush’s once-secret Terrorist Surveillance Program. 

The case was filed after it became known that telephone conversations between two American attorneys’ and their clients in Saudi Arabia were illegally wiretapped without warrants and siphoned to the National Security Agency (NSA).

“This case was the only chance to litigate and hold anybody accountable for the warrantless wiretapping program,” said Jon Eisenberg, the California lawyer representing the two. “As illegal as it was, it evaded accountability.”

He based the case on violations of the Foreign Intelligence Surveillance Act, which describes procedures for requesting both judicial authorization for electronic surveillance and physical searches of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. 


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The law was written by Congress in light of the former President Richard M. Nixon’s Watergate scandal. The court found that while the act regulates eavesdropping of the government on Americans, it never relinquished sovereign immunity, so it was never intended for the aggrieved to be able to sue the government – even when constitutional rights were violated by the United States breaking its own wire-tapping laws.

“Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts,” said Judge M. Margaret McKeown. Following the dismissal, Eisenberg then asked the appeals court to reconsider the case via en blanc panel.

Another major case contesting wiretapping programs and domestic spying laws was the (EFF) Electronic Frontier Foundation’s case, which stemmed from a leak about a secret room in an AT&T office in San Francisco that routed internet traffic to the NSA. In this case, the federal government was accused of working with the nation’s largest telecommunications companies to listen in on Americans’ conversations.

The appeals court ruled in favor of the government, citing act of Congress from July 2008, which granted retroactive immunity to telecommunication companies and thereby prevented them from being arraigned for supposedly partaking in the surveillance program.

The case was dismissed and directed back to a district court after it survived the ruling of the appeals court.

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Edited by Braden Becker

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