[UPDATED] A federal appeals court upheld the constitutionality of a law giving immunity to telecommunications companies that aided the government in warrantless eavesdropping by the National Security Agency looking for suspected terrorists.
But in a second, separate opinion, the 9th U.S. Circuit Court of Appeals said telecom customers may sue the government for alleged interception of communications by phone or email.
News in 2006 that the NSA engaged in warrantless snooping with the cooperation of telecom companies it spawned dozens of lawsuits.
In response Congress ultimately passed legislation to give retroactive immunity to companies that aided the NSA – with some conditions.
The 9th U.S. Circuit Court of Appeals Thursday upheld the constitutionality of that law, known as the Foreign Intelligence Surveillance Act, FISA in the lead case brought by Tash Hepting against AT&T.
“Although Hepting offers a broadside against the constitutionality of [the law], we conclude that the statute is constitutional and does not violation Articles I or III of the Constitution or the Due Process Clause of the Fifth Amendment,” wrote Judge Margaret McKeown, for the three-judge panel.
The order, originally signed by President George W. Bush in December 2005, gave NSA power to conduct warrantless eavesdropping in the aftermath of Sept. 11, 2001.
The aim was to detect and intercept al Qaeda communications, according to Bush.
Some 33 separate legal actions were consolidated in one suit in the Northern District of California before former Chief Judge Vaughn Walker.
The cases alleged the telecom companies provided the NSA to direct accesws to nearly all communications passing through their domestic facilities.
Walker granted the government’s motion to dismiss the case in 2009, rejecting the plaintiff claims that constitutional defects made the law unenforceable.
The appeals court rejected claims the law violates the bicameralism requirements of the Constitution, based on Bush’s creation of the program through a presidential order, rather than legislation involving Congress.
The opinion also rejects the separation of powers claim that the law intrudes on the power of the judiciary. And it declines a claim the law violates due process because the forecloses any challenge to government wiretapping.
Case: In re: National Security Agency Telecommunications Records Litigation,
Hepting v. AT&T Corp., No. 09-16676
Jewel v. NSA, No. 10-15616