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Court makes spying on Americans legal with new warrantless wiretap ruling

Dan Graziano
August 8th, 2012 at 3:05 PM

A federal appeals court on Tuesday ruled in favor of President George W. Bush’s controversial Terrorist Surveillance Program, which allows the government to spy on Americans without a warrant. The court reversed an earlier decision in which two American attorneys were awarded more than $20,000 in damages and their lawyers $2.5 million in legal fees after they proved the government had spied on them without warrants. The earlier lawsuit was the first and only case that successfully challenged the controversial program.

The government appealed the victory, however, and the appeals court dismissed the earlier suit and the damages, Wired reported. “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization,” a three-judge panel for the 9th U.S. Circuit Court of Appeals in San Francisco wrote.

The lawyer for the two attorneys, Jon Eisenberg, said that he may request the court to reconsider its decision with a larger panel of judges, or even petition the Supreme Court to hear the case. “This case was the only chance to litigate and hold anybody accountable for the warrantless wiretapping program,” he said in a telephone interview with the publication. “As illegal as it was, it evaded accountability.”

Eisenberg faces one major problem, though. The court ruled that when Congress wrote the law, it never waived sovereign immunity in the section prohibiting Americans from being targeted without warrants. Therefore, citizens who were allegedly spied on without cause are unable to sue the government, even though their constitutional rights may have been violated.

“Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself,” Judge M. Margaret McKeown wrote. ”Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts.”

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