12
Apr
Obama’s fraudulent “sovereign immunity” legal argument
On April 3, late on a Friday afternoon, the Justice Department asked a judge to dismiss a lawsuit filed against the National Security Administration for unlawfully spying on Americans’ telephone records. In its brief, the Justice Department made two arguments:
First, it claimed that allowing the lawsuit to proceed would result in the disclosure of “state secrets.” This argument was disappointing, although not surprising. The Obama Justice Department had made that claim once before back in February, in response to a suit brought by victims of extraordinary rendition. In doing so, the Obama team was following the lead of the Bush administration, which made so many similar claims that candidate Obama criticized them as evidence of excessive government secrecy.
But its second argument was surprising: the Obama Justice Department argued that the government has “sovereign immunity” when it comes to domestic spying. That’s right, sovereign. Like the guy our founding fathers rebelled against for unreasonable searches and seizure of Americans’ property. In essence, the Justice Department was saying that Americans have no right to sue the government for alleged illegal surveillance.
Huh? What about the Fourth Amendment?
Realizing that the Obama honeymoon was definitely over, I went down to the Brady Briefing Room last Thursday to get some answers. This was my exchange with Press Secretary Robert Gibbs:
ME: Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance.
Does the President support the Justice Department’s positions in that case?
MR. GIBBS: Yes, absolutely. It’s the — absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.
ME: Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?
MR. GIBBS: No. I mean, obviously, we’re dealing with some suits, and the President will — and the Justice Department will make determinations based on protecting our national security.
Q So he still thinks that the Bush administration abused the state secrets privilege?
MR. GIBBS: Yes.
The state secrets issue is important, but what’s absolutely mind-blowing here is that, according to Mr. Gibbs, President Obama believes that citizens whose 4th amendment rights have been violated by the government have no legal recourse.
Which is completely wrong, of course.
As George Washington School of Law Professor Orin Kerr pointed out recently at the Volokh Conspiracy, section 2712 of chapter 121 of the Electronic Communications Privacy Act (ECPA) of 1986 is entitled “Civil actions against the United States.” It states that:
Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title…may commence an action in United States District Court against the United States to recover money damages.
It can’t get any clearer than that.
The Justice Department’s completely erroneous argument rests on a quotation taken out of context. The crux of their argument is this:
In the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707.
But if you read section 2520 (in chapter 119) and section 2707 (in chapter 121), it is readily apparent that the phrase “other than the United States” is there only because those sections specify penalties for when the law is violated by someone other than the United States (e.g., a state or local government). Section 2712, on the other hand, specifies penalties for violations of the law by the United States. The penalties are different in the two situations. And section 2712 explicitly applies to both chapters of the ECPA (the ECPA has two parts: chapters 119 and 121 of U.S. Code 18).
Hey Professor Obama. Somebody needs to go back to law school.
[Note: The preceding is the original, “raw” story I wrote and submitted last Thursday to Raw Story, who rewrote it and published it last Friday as White House: Obama ‘absolutely’ stands behind effort to throw out warrantless wiretapping suit.]
