The brief filed Thursday in U.S. District Court in San Francisco argues that the FISA Amendments Act denies telecom customers their rights without due process of law, since they're subjected to warrantless surveillance. To get approval for the wiretapping, the government only needs to certify to the court in private that the surveillance is legal or authorized by the president, the EFF said. U.S. Attorney General Michael Mukasey filed that classified certification with the court last month.
In addition, the fact that only the president has to approve the wiretapping violates the Constitution's separation of powers, since such approval is usually left up to the courts, the EFF argues.
"The immunity law puts the fox in charge of the henhouse, letting the attorney general decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," EFF senior staff attorney Kevin Bankston said in a statement released Friday.
While the Bush administration has argued that the surveillance was selective, the EFF claims to have provided the court with a summary of thousands of pages of documents demonstrating that the government has infiltrated the communications of millions of innocent Americans. "We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law," EFF senior staff attorney Kurt Opsahl said.
The EFF and the American Civil Liberties Union have been appointed co-coordinating counsels in a class-action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communication records were handed over to the National Security Agency. The EFF's constitutional challenge is scheduled to be heard by the court Dec. 2. The EFF has posted its brief online, along with a summary of its evidence.
The 2008 Amendments Act of the Foreign Intelligence Surveillance Act provides retroactive immunity to telecom companies that assisted the NSA in warrantless wiretapping, which was revealed publicly in late 2005 by The New York Times. The Bush administration has defended its actions as necessary for fighting terrorism. The disclosure, however, resulted in 47 lawsuits against telecom companies. Those suits are being coordinated by the EFF and the ACLU in the class-action case.