Surveillance lawsuits could be dismissed

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A federal judge will hold a hearing in San Francisco on Friday on the next steps in 38 domestic surveillance lawsuits in the wake of a new law protecting telephone companies from such suits.

U.S. District Judge Vaughn Walker is expected to consider setting a briefing schedule and a date for a hearing, possibly in December, on the fate of the cases under the amended Foreign Intelligence Surveillance Act, or FISA.

A FISA amendment enacted by Congress in July after months of debate gives telecommunications companies retroactive immunity from being sued for aiding the government in warrantless surveillance of Americans' phone calls and e-mails.

The secret surveillance program was authorized by President Bush for the period of Sept. 11, 2001, to Jan. 17, 2007, and was intended to fight terrorism.

The lawsuits were filed by citizens in courts around the country beginning in 2006 and were consolidated in Walker's court for judicial efficiency.

Government lawyers in a filing last week asked Walker to start the process of tossing the cases out of court and have suggested a hearing on their dismissal motion on Dec. 11 or 18.

But lawyers for citizens suing the telecom companies said in their own filing that they plan to challenge the constitutionality of the amendment and think that issue should be decided first.

Cindy Cohn, a lawyer with the San Francisco-based Electronic Frontier Foundation, said, “We think the law is unconstitutional because Congress is essentially giving the executive branch the ability to decide legal cases in the courts. There's a separation of powers problem.”

Cohn said a second argument is that “Congress can't eliminate the Fourth Amendment rights (against unreasonable searches) of millions of Americans.”

The lawsuits also contend the program was designed for wholesale “dragnet surveillance” rather than prevention of a terrorist attack.

Electronic Frontier Foundation lawyers filed the first of the lawsuits, on behalf of four Californians against AT&T Corp., in federal court in San Francisco in January 2006. 

U.S. Justice Department lawyers said in their papers that they will defend the constitutionality of the law in later filings, but said that in brief, the FISA amendment is within Congress's “power to enact rules of law in the national interest to define who shall be liable under what circumstances.”

Meanwhile, the federal attorneys wrote, the law envisions the “prompt dismissal” of lawsuits and consideration of the government's motion for dismissal should take priority.

At the case management conference on Friday, Walker will also consider the next steps in a separate lawsuit filed by the now-defunct American branch of an Islamic charity, the Al-Haramain Islamic Foundation, against President Bush.

The group was declared a terrorist organization by the U.S. Treasury Department in 2004. Treasury officials accidentally gave the group a top-secret document, allegedly a phone log, in 2004, but the document was retrieved and courts have thus far barred the foundation from using it as evidence of its warrantless surveillance claim.

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