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Lawyers for civil liberties groups asked a federal appeals court Wednesday to revive two groups of lawsuits claiming the government has monitored the communications of millions of Americans without warrants since 9/11.
The cases involve the federal government's widely expanded efforts to track down terrorists following the attack a decade ago -- efforts that included, at minimum, the interception of international communications that could include members of al-Qaida or other extremist groups.
The San Francisco-based Electronic Frontier Foundation, the American Civil Liberties Union and other critics allege that the surveillance was much broader than that. They cite among other things a declaration from a longtime AT&T worker that the company had allowed the National Security Agency to build a room in one of the company's buildings and route copies of customers' communications there.
The government has never confirmed or denied collecting communications from millions of U.S. citizens without warrants.
"We can't allow the government to stack the deck against ordinary Americans," EFF Legal Director Cindy Cohn said Wednesday. "We need to protect against officials who overstep limits on their power."
One set of lawsuits involves customers who sued telecommunications companies, including AT&T, alleging that the companies violated their privacy rights by turning their communications over to the NSA. The other involves lawsuits that some of those same plaintiffs brought against the government, saying the surveillance violated their constitutional rights.
The cases were consolidated before a now-retired federal judge in San Francisco, Vaughn Walker. In an unrelated case, Walker ruled that the government's warrantless wiretapping of the Al-Haramain Islamic Foundation in Oregon was illegal and ordered the government to pay more than $2.5 million in lawyer fees and damages -- a ruling the Obama administration is appealing.
But the judge dismissed the cases brought by the telecom customers. He found that Congress acted legally in 2008 when it amended the Foreign Intelligence Surveillance Act to allow the Justice Department to grant immunity to telecom companies that participated in the warrantless wiretapping program.
And in a separate ruling Walker decided the telecom customers did not have standing to sue the government directly because -- unlike the plaintiffs in the Al-Haramain case -- they had not suffered specific harm beyond those suffered by any other citizen.
In a decision last year, Walker described the latter case as "citizen suits seeking to ... punish and bring to heel high-level government officials for the allegedly illegal and unconstitutional warrantless electronic surveillance program or programs now widely, if incompletely, aired in the public forum."
But, he noted, "A citizen may not gain standing by claiming a right to have the government follow the law," and said those issues are best resolved in the political arena.
During arguments Wednesday, the civil liberties groups told Judges M. Margaret McKeown, Michael Hawkins and Harry Pregerson that that was wrong. They said their clients had suffered harm that was not merely general in nature: The interception of one client's emails is very different from another's, just as a burglary at one person's home is different from another's.
The EFF and ACLU also argued that Congress violated the separation of powers by allowing the attorney general to choose when to grant immunity to telecom companies. Certain federal statutes, including the Electronic Communications Privacy Act, allow for customers to sue if companies violate those laws. By giving the DOJ the power to grant immunity, Congress is allowing the department to choose which laws apply -- essentially letting DOJ make law rather than just enforce it, they said.
At the same time, the immunity grants prevent federal courts from determining whether telecom companies took part in illegal spying on U.S. citizens, they said.
The government lawyers said Congress acted within its authority in allowing the DOJ to grant immunity to the telecom companies. They noted that when a telecom company is sued, and the DOJ grants the company immunity, that grant is subject to review by a federal judge -- in chambers, without the plaintiffs present -- before the case is dismissed.
At any rate, such surveillance, if it existed, would be highly classified. That would preclude any litigation under the state secrets doctrine, they said.
"That information has to be and can properly be protected from disclosure," said DOJ lawyer Thomas Bondy.
One of the judges, Pregerson, participated by video conference. At one point, he whispered that one of the lawyers in the case had been quoted in The New York Times and on cable television. McKeown warned him that people in the courtroom could hear what he was saying.
"That's all right," he responded. "I'm used to electronic surveillance."