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Court Case

In Re NSA Telecommunications Records Litigation (Amicus Brief)

The Center submitted an amicus on October 24, 2008, in support of the plaintiffs’ opposition to the government’s motion to dismiss..

Published: October 24, 2008

In Brief – The Brennan Center for Justice submitted an amicus brief on October 24, 2008, in support of the plaintiffs' opposition to the government's motion to dismiss on the basis of Congress' recent grant of retroactive immunity to telecommunication companies that participated in the National Security Agency's illegal domestic wiretapping program.

Argument Presented – The immunity statue violates the Separation of Powers and undermines the Judiciary's independence by impermissibly dictating a rule of decision to the courts and permitting the executive branch to commandeer judicial proceedings.

Procedural History – The Brennan Center for Justice submitted its amicus brief to the U.S. District Court for the Northern District of California on October 24, 2008. The case is set to be heard on December 2, 2008.


In Detail – On October 24, 2008, the Brennan Center filed an amicus curiae in the U.S. District Court for the Northern District of California in opposition to the government's motion to dismiss lawsuits challenging the participation of several telecommunication companies in the government's domestic terrorist surveillance program. The Brennan Center challenged the constitutionality of the FISA Amendments Act, which grants retroactive immunity to telecommunication companies that participated in the National Security Agency's illegal domestic wiretapping program. This program denied the public its right to privacy and, by pushing for this case's dismissal, the government is seeking to deprive individuals their right to due process.

The Brennan Center argues that the government's interpretation of § 802 of the FISA Amendments Act as grounds for immediate dismissal of the lawsuit violates the Separation of Powers. While affirming Congress's power to change retroactively federal law to effect pending cases, the Supreme Court cautioned in United States v. Klein that Congress cannot impose a "rule of decision" that interferes with the essential independence of Article III courts. The so-called Klein rule has special force when-as is the case in this litigation-Congress picks out specific cases and then tampers with the mechanisms of adjudication in order to achieve a result that is beneficial to the government.

Even if the Court does not invalidate § 802 under the Klein rule, the Brennan Center argues, the Separation of Powers demands that the Attorney General's certification that the cases can be dismissed under § 802 be subjected to stringent, adversarial testing. It is crucial that federal courts' power to adjudicate cases and controversies be exercised independently. According to the government, however, § 802 allows the Attorney General to file a document, which plaintiffs cannot read, and to make claims about the factual bases for dismissal, which plaintiffs have no effective chance to examine or contest. Denying courts their fundamental responsibilities raises serious constitutional concerns that should be avoided by permitting vigorous review of the government's assertions.