As we near the tenth anniversary of the terrorist attacks of 9/11, we can expect to see a number of retrospective pieces in print and broadcast offering commentary on changes to America in the decade since that shocking day.
As we near the tenth anniversary of the terrorist attacks of 9/11, we can expect to see a number of retrospective pieces in print and broadcast offering commentary on changes to America in the decade since that shocking day. Some of the changes are obvious — heightened security at the airports, U.S. troops involved in two wars overseas, and physical barriers placed at governmental buildings in downtown Chicago and across the nation.
Beyond these obvious changes, we have seen numerous alterations to federal laws that permit government to gain easy access to personal information about millions of Americans. The USA PATRIOT Act, for example, was passed by Congress and signed into law approximately six weeks after the terrorist attacks in New York and at the Pentagon; that law has been extended several times in some form or other. And, Congress passed a measure that granted the National Security Agency broad, new powers to monitor the telephone calls, emails and website use of Americans without prior oversight from a court.
In early 2006, news reports uncovered another front in the effort to expand government’s ability to spy on Americans without evidence of any criminal activity. These reports indicated that the major phone companies, including AT&T, had cooperated with the federal government in spying on Americans without a warrant. It was revealed that the telecoms turned over to the government massive quantities of records on the telephone calls made by millions of consumers across the nation. Later we learned that included the communications not just the records.
In response, more than forty lawsuits were filed across the nation challenging this practice by the telecoms — a direct violation of not only existing federal and state law, but also the privacy and associational rights protected by the constitution. In short, the phone companies failed to protect their customers’ privacy. I joined a suit brought by the American Civil Liberties Union of Illinois, along with author and oral historian Studs Terkel, Dr. Quentin Young and James Montgomery, a former Corporation Counsel for the City of Chicago.
In the view of the plaintiffs in our case, the phone companies broke the law and needed to be held accountable. Alas, accountability has been difficult to achieve.
In response to demands from the Bush White House, the U.S. House and Senate voted to grant retroactive immunity to the nation’s giant telecommunications companies that collaborated with the government in the spying we challenged.
During the debate over the law, government officials were not subtle, acknowledging that the goal of the legislation was to provide amnesty for the telephone companies. Once the law was passed and signed into law, then Attorney General Michael Mukasey filed the required “certification” with a federal district court in San Francisco (where all the lawsuits, including ours, had been combined) saying that the lawsuits must be dismissed. The court, under the law passed by Congress, was not permitted to examine whether the spying was legal. The court only could consider the representation by the Attorney General that the activity was within the class of cases in which the Congress intended to give immunity. Based on this limited examination, the judge granted the motion and denied my fellow plaintiffs and me our day in court.
This week, a federal appellate court, sitting in Seattle, will hear an appeal to the dismissal. In many ways, the result of this appeal will determine just how much things have changed since September 11, 2001.
One of the central elements of the argument before the appellate court will be a question about how much authority Congress ceded to the Executive Branch in voting for immunity for the telecoms in this case. In this instance, Congress did not — as legislatures often do — change the laws we claimed were violated by the sharing of phone records and communications. Rather, the Congress simply gave the Executive Branch (through the Attorney General) the ability to pick particular cases in which to seek dismissal — with no real limitations on the reasons that might lead the Attorney General to file such a motion. In other words, the Attorney General can act with complete discretion to determine what the law means and when it should be invoked. There are no standards.
This process is a direct violation of the divisions of power under the U.S. Constitution, which places the authority for making laws in the hands of Congress, not in the Executive Branch. Moreover, the Attorney General’s filing also dismissed a number of claims under state law (mainly California privacy laws) without Congress ever acting to change federal law to hold supremacy over state law.
Courts have made clear over time that Congress can change laws and protect entities from lawsuits by changing federal law and policy. That is not what occurred here. Rather, Congress simply ceded to the Attorney General the right to decide who can and cannot have their day in court to challenge violations of their personal privacy. And, as noted, this decision is not bound by any real standard.
Defenders of immunity have said that we need to give the giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. But the truth is that telecoms did not need a special deal. In fact, these companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. In this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?
Most important, amnesty not only lets the companies off the hook without answering any questions, but it also assures that the American people will never learn about the breadth and extent of the lawless program authorized by President Bush to gather information about Americans without a warrant. We deserve the opportunity to explore the interactions between the government and the telecoms that led to the phone records of millions of innocent Americans being swept up and kept up by the government.
I am hopeful the appeals court will rule to permit us our day in court.