The Justice Department is defending a provision in a 2008 surveillance law that provides legal immunity to telecommunications companies that cooperated with the Bush administration's warrantless surveillance program.
The department was expected to defend the provision. But its stance in a brief filed today in a California federal court underscores the surprising degree to which the Obama administration -- at least in court -- is determined to shield President Bush's controversial counter-terrorism policies from legal challenge or even public scrutiny.
The Obama administration is seeking to have a raft of consolidated lawsuits challenging the legality of the warrantless surveillance dismissed. U.S. District Judge Vaughn R. Walker, who is overseeing the consolidated lawsuits in the Northern District of California, asked the Justice Department for its views on the immunity provision in the law.
Under the provision, judges are required to dismiss such lawsuits against a telecommunications company if the Attorney General privately certifies that the company was cooperating with the government.
In an 18-page brief, the department rejected the argument that the immunity provison is an unconstitutional delegation of legislative authority.
"Congress' authority to grant discretion to the executive branch, already broad in the context of domestic affairs, is even broader where, as here, the grant of power relates to the executive's authority over national security or foreign affairs," Justice Department lawyers wrote. "(The certification provision) concerns the disposition of lawsuits that seek disclosure of alleged intelligence activities by the United States. It thus concerns an area in which the executive has constitutional authority to protect and control classified information and to safeguard national security."
Earlier this month, the Obama administration followed its predecessor in invoking the state secrets privilege to shield government information in two lawsuits against Bush adminstration policies. One is against a company that allegedly helped the CIA transfer suspected terrorists to other countries to be tortured. The other challenges the legality of the warrantless surveillance program.
Justice Department spokesman Matthew Miller said "the department is compelled to defend (the) statute as long as it can reasonably do so, and in this case the department was asked by the court to make a defense of the statute passed by Congress. The FISA Act passed by Congress in 2008 is the law of the land, and as such the Department of Justice defends it in court."
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