A court opinion[pdf] issued today further undermines the arguments for telecom immunity. While the victims of the government’s illegal wiretapping program were sent back to get more evidence (which is, surprise surprise, difficult to request from the government), the court still issued an important opinion:
…the Court held that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims.” The Court rejected the expansive view of executive power promoted by the government, holding that the President’s authorities under Article II of the Constitution do not give him the power to overrule FISA.
The EFF article has the whole story, and explains how it undermines the reasoning for telecom immunity:
A major talking point for telecom apologists is that the the telcos were unfairly prevented from mounting a defense by the state secret privilege. By holding that FISA’s existing evidence security procedures preempt the state secrets privilege, the decision belies telecom immunity proponents’ claims that the litigation was unfair because the privilege prevented the telecoms from defending themselves