The 9th Circuit Court of Appeals has ruled that the government can spy on the communications of Americans without warrants and without fear of being sued, David Kravets of Wired reports.The decision reversed the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program in which two American attorneys working for the now-defunct al-Haramain Islamic Foundation proved that they were spied on illegally.
The attorneys were originally awarded $20,000 each in damages and $2.5 million in legal fees, but Tuesday’s ruling overturned the awards and found the executive branch is immune to claims of warrantless wiretapping.
From the three-judge panel’s decision:
“This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization.”
The American lawyers had successfully sued under the Foreign Intelligence Surveillance Act of 1978 – a domestic spying law that requires the government to seek warrants before monitoring Americans’ communications – after the National Security Agency (NSA) illegally wiretapped the lawyers as they spoke on U.S. soil to clients in Saudi Arabia.
But the San Francisco-based appeals court ruled that Congress never waived sovereign immunity when it wrote the law regulating eavesdropping on Americans, saying that “Congress did not allow for aggrieved Americans to sue the government, even if their constitutional rights were violated by the United States breaching its own wiretapping laws.”
Jon Eisenberg, the lawyer for the two attorneys, told the LA Times that the case “was the only chance to litigate and hold anybody accountable for the warrantless wiretapping program … As illegal as it was, it evaded accountability.”
Congress authorised Bush’s spy program in 2008, and federal officials have publicly acknowledged that the government works with private telecom companies to secretly monitor telephone and e-mail traffic.
The Electronic Frontier Foundation currently has an ongoing case that alleges – with evidence provided by three NSA whistleblowers – that the government unconstitutionally collects and analyses the domestic communications of innocent Americans.
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