Under the Bush administration’s Terrorist Surveillance Program, federal officials bypassed the 1978 Foreign Intelligence Surveillance Act (FISA), which required the executive branch to obtain a court-authorized warrant from a special high-security court before engaging in surveillance that might include individuals in the United States.
In January, US District Judge Vaughn Walker in San Francisco dismissed a lawsuit seeking to hold the government accountable for secret, warrantless electronic surveillance conducted in the US for four years after the 9/11 attacks. Plaintiffs failed to offer proof that they had been targeted by the wiretap program, Judge Walker ruled. This week, the Ninth Circuit panel reversed that ruling.
Although the Justice Department has not commented on this week’s ruling, the federal government can be expected to appeal to the US Supreme Court in this case. Given the makeup and history of the current high court regarding national security issues, it is unlikely that the decision relative to telecom companies’ immunity will be reversed or even taken up.
In 2008, Congress granted telecommunications companies – including AT&T, Sprint Nextel, Verizon Communications Inc., and BellSouth Corp. – immunity for cooperating with the government’s intelligence-gathering activities. Lawmakers amended FISA to allow government spying on foreign terrorism suspects without first obtaining a court warrant.