New Obama DOJ claims sovereign immunity in wiretap case

It is a principle that predates the founding of the United States: a kind of unwritten rule that, in an earlier era, boiled down to the common phrase, "The King can do no wrong." Since the early days of English common law, the doctrines of government have been presumed to exclude and immunize a government from liability, except when those doctrines provide the exceptions.

And while the US Constitution is often praised for empowering individuals to sue their own government, the truth is that the Constitution didn't really address that point very directly. So since 1789, it's been up to the courts to apply those certain exceptions to the unspoken rule of sovereign immunity -- a practice which, when viewed with a wide-angle lens toward all of US history, has worked out quite well in the end.

In one of the first major court filings to be issued from the now mostly-reassembled US Dept. of Justice under the Obama administration -- a US District Court filing last Friday -- a team led by Acting Assistant Attorney General Michael Hertz petitioned the judge for dismissal of a civil suit against the National Security Agency. That suit alleges the government conspired with telecommunications companies in conducting anti-terrorism wiretapping operations they claim are illegal.

It's the heart of last year's debate over whether the Foreign Intelligence Surveillance Act protects both the US government and those telcos which it worked with, in conducting electronic surveillance that may have gathered information on civilians. At the time, President Bush insisted that any amendments to the FISA laws include immunity for telcos; and in seeking a compromise, then-Senator Barack Obama changed his stance and agreed. Last summer, Mr. Bush signed the bill into law.

That provoked a reaction from civilians who claimed that the NSA conducted "illegal and unconstitutional dragnet communications surveillance in concert with major telecommunications companies," according to their suit.

But to sue the United States, case law -- not the Constitution -- mandates that Congress must allow the US to be sued. Specifically, Congress must waive sovereign immunity. Now, Congress has waived it before; and as judges interpret it, once it's waived, it can't be reclaimed. But citing landmark case law where a government contractor sought to put a lien on the government, the way it would put a lien on a client's house or property, for not paying a bad debt...and failed to obtain the lien, the new DOJ claimed Congress never waived sovereign immunity in cases involving federal wiretaps.

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit," reads the DOJ attorney's citation. Later, they add, "Sovereign immunity cannot be waived implicitly; waivers of sovereign immunity must instead be explicit and unequivocal."

In his 2004 book Administrative Law in the Political System, Saint Louis University law professor Dr. Kenneth F. Warren writes, "The sovereign immunity doctrine has been heavily relied upon by the courts for over two centuries to stop liability suits against the United States government and the state governments. Ironically, however, the use of this doctrine has never been formally sanctioned by our lawmakers. The sovereign immunity doctrine is deeply rooted in America's Anglo-Saxon legal heritage, and it was evidently just assumed that the doctrine should become part of our legal system."

The government's new claim of sovereign immunity is extremely important, because it could extend beyond this particular FISA-related case, setting the scene for every civil suit regarding electronic surveillance for at least the next four years. As the DOJ attorneys argue later, plaintiffs may have a case if they could prove that the government willfully misused information that was misappropriated through wiretaps, and which specifically concerned them rather than just the public at large. But drawing the Catch-22 for itself, they state that in order to do that, the plaintiffs would have to know what information it was that was misappropriated, and simply knowing it may be a violation of the State Secrets Act.

"It bears emphasis that plaintiffs' allegation of a 'dragnet' of surveillance by the NSA -- the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans... -- does not establish their standing," the DOJ writes. "Even if that allegation were sufficient to avoid dismissal on the pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege. Plaintiffs cannot establish the existence of an alleged content dragnet...or its application to them personally without the disclosure of NSA intelligence sources and methods."

The dismissal petition drew a response yesterday from the Electronic Frontier Foundation, which is supporting the plaintiffs. Senior Staff Attorney Kevin Bankston wrote, "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like déjà vu all over again."