It was disappointing last week to watch the president sign legislation designed to deny my clients their day in court. That, however, is precisely what President Bush attempted to do when he signed into law the so-called FISA Amendment Acts (FAA) last Thursday. For the past year or so, I have served as a co-lead coordinating counsel for the nearly 40 cases currently challenging the nation’s largest telecoms’ collaboration with the government in spying on innocent Americans without a warrant. These cases now pending in the courtroom of Judge Vaughn Walker in the Northern District of California were the subject of great controversy during the debate and passage of the FAA.
The controversy derives from the fact that the FAA provides a “get out of jail free card” for the telecoms. It is an attempt to see that neither the phone companies nor members of the Bush administration will ever be held accountable for their decision to invade the privacy of millions of innocent Americans under the guise of investigating terrorism. The law hailed by the president last week says that in order to gain legal immunity for their actions, the telecoms simply must show that they received a request from the government to do the spying, not that the request itself was lawful. This provision is ludicrous, since everyone involved in the debate knows that the government made such a request to the phone companies. The real question is: Was the request lawful? This is the question asked by our litigation — one ignored by Congress and the White House.
Still, we expect that the Bush administration will move quickly to dismiss all the pending cases relying on the provisions of the FAA.
We intend to challenge all efforts to dismiss our cases. We believe that our clients deserve their day in court. Moreover, we believe that pursuing these cases is the only way that the American people will ever know the scope and breadth of the White House’s illegal spying program — since Congress rejected even a straightforward proposal to delay providing immunity to the telecoms until after the Congress conducted a full-fledged investigation of the president’s illegal program.
Most important, we believe the provision of the FAA providing the telecoms with immunity violates the fundamental constitutional principle of separation of powers. Under our system, Congress simply cannot substitute their judgment for an independent federal judge in a matter that is pending before the court. We trust our courts to find facts and apply those facts to the law, carefully and without political posturing or bias. In this instance, Congress did not change the substance of the law; they simply chose to forgive the telecoms for breaking that law, suggesting that there are mitigating circumstances (although those “mitigating” factors surely have been overstated) that must be taken into consideration.
This is not a decision for the Congress. This is the role of the courts, where we look forward to vigorously defending our position.