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White House: Obama 'absolutely' stands behind effort to throw out warrantless wiretapping suit
Eric Brewer
Published: Friday April 10, 2009


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President Barack Obama endorsed a Justice Department move to dismiss a case in which the National Security Agency is being sued over its warrantless wiretapping program, because he believes the case presents a risk to national security, the White House told Raw Story Thursday.

In response to a question at Thursday’s press briefing, White House Press Secretary Robert Gibbs said that President Obama stands firmly behind a Justice Department brief filed last week which aims to have a civil liberties group’s lawsuit dismissed.

He “absolutely does,” Gibbs said. “Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.”

The Electronic Frontier foundation is suing the NSA for damages over a program in which the government tracked the phone calls and emails of thousands of Americans following the Sept. 11, 2001 attacks.

In their filing Friday, the Justice Department argued that the case should be dismissed because information surrounding the program was a “state secret” and therefore couldn’t be litigated or discussed. It also proposed that the government was protected by “sovereign immunity” under federal wiretapping statutes and the Patriot Act, arguing that the United States could only face lawsuits if they willfully elected to disclose intelligence obtained by wiretapping.

In other words, the motion posited that government agencies couldn’t be sued for spying because they never intentionally told anyone they were engaged in warrantless wiretaps, even if such a program violated the law.
During his presidential campaign, then-Sen. Barack Obama criticized the Bush Administration for its use of “state secrets” as a legal argument to prevent lawsuits from moving forward. His campaign website listed state secrets under the headline “Problems.”

“The Bush administration has ignored public disclosure and has invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of court,” his campaign site said.

Raw Story questioned Gibbs about the apparent contradiction.

“Before he was elected, the President said that the Bush administration had abused the state secrets privilege,” this reporter asked. “Has he changed his mind?”

“No,” Gibbs replied. “I mean, obviously, we're dealing with some suits, and the President will -- and the Justice Department will make determinations based on protecting our national security.”

“So he still thinks that the Bush administration abused the state secrets privilege?” Raw Story asked.

“Yes,” Gibbs said.

The invocation of state secrets privilege as a means of derailing suits against the government is nothing new. The Obama Justice Department made this claim in February, in response to a suit brought by victims of extraordinary rendition. But the Department’s “sovereign immunity” argument is unexpected.

A close review of the Department's brief suggests that the Justice Department took a quote out of context in an effort to bolster their case.

The Department asserts that the United States can’t be sued because it’s specifically excluded under the 1986 Electronic Communications Privacy Act. “In the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a 'person or entity, other than the United States,'” the Department wrote.

In that section of the law, however, the phrase “other than the United States” is there only because those sections specify the penalties to be used in cases in which the law is violated by someone other than the United States. In contrast, another section of the law specifies penalties for violations of the law by the United States. (More on the law can be read at section 2520 (in chapter 119) and section 2707.)

Some legal scholars have raised eyebrows at the claim.

Orin Kerr, professor at George Washington School of Law, believes that the Administration's argument they can't be prosecuted unless they willfully provide wiretapping intelligence seems spurious.

"The statute itself says 'any willful violation,' and it expressly covers all of Chapter 121 (the Stored Communications Act), all of Chapter 119 (the Wiretap Act), and those explicit sections of the [Foreign Intelligence Surveillance Act]," Kerr wrote.

The preceding article was a White House report from Eric Brewer, who periodically attends White House press briefings for Raw Story. Brewer is also a contributor at BTC News. He was the first person to ask about the Downing Street memo at a White House briefing.


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