When Violations Of The Law Have No Remedy: The Case Of Warrantless Wiretapping

Yesterday, in Al-Haramain Islamic Foundation, Inc. v. Obama, a panel for the Ninth Circuit Court of Appeals ruled that the federal government did not unequivocally waive its sovereign immunity when it comes to violations of federal wiretapping law, thus leaving violations without a civil remedy. In effect, this leaves the plaintiffs with no ability to hold the government accountable for breaking its own laws. As the opinion itself stated: “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.”

The dangers of broad immunity are real in both the public and private contexts. Previously, Ryan Radia of CEI and Berin Szoka of TechFreedom have argued that any cybersecurity bill passed by Congress should not grant broad statutory immunity against common law contract claims because it would prevent a market for privacy from arising. In Al-Haramain, the principle of sovereign immunity was applied, thwarting an attempt to keep government officials accountable.

The genesis of sovereign immunity should be enough to illustrate its dangers. The concept is a relic of a bygone era, reflecting the medieval idea that “the King can do no wrong.” Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001). Along with the confused doctrine of divine right of Kings, there were those who seemingly believed the monarch actually shared many of God’s attributes–such as perfect administration of justice. This is in stark contrast with the classical liberal standard, which is that all men should be held accountable for their actions.

The notion that the government is incapable of error seems contrary to the historical experience of the Founding generation and can be found nowhere in the United States Constitution. Nonetheless, the concept of sovereign immunity has been incorporated into American law by courts who looked to English common law and practice. The theoretical justification of such a move has been unclear even to the courts which have applied it. See, e.g., United States v. Lee, 106 U.S. 196, 207 (1882) (“[T]he principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”).

Judge Dredd believes in sovereign immunity.

One possible justification in a democracy for sovereign immunity that government is at one with the people, captured by Lincoln’s description of it as “of the people, by the people, for the people.” In other words, the simplistic notion that we are the government means that government agents should not be held financially accountable in court for violating rights. This almost has a Rousseauian mystical quality about it, hearkening to some sort of general will which can “force [us] to be free.” This logic leads to absurdities though, like the idea that the Jews killed themselves when the German government initiated the Holocaust and its attendant horrors.

While the gathering of electronic information through warrantless wiretapping does not rise nearly to that level of egregiousness, there have been examples of government conduct which are much closer–and have been protected by the doctrine of sovereign immunity. In United States v. Stanley, 483 U.S. 669 (1987), the Supreme Court found that neither the federal government nor any federal officer could be sued for injuries caused when a serviceman was given LSD without his consent as part of a medical experiment. In dissent, Justice Brennan noted the parallels between the U.S. government’s activity and the medical experiments conducted by the Nazis which were prosecuted in the Nuremberg Trials. Id. at 687.

In Al-Haramain, the Ninth Circuit panel was bound by Supreme Court precedent, regardless of the outcome it produced. However, broad immunity seems inconsistent with a classical liberal system “under which bad men can do least harm.” Civil penalties are often necessary to create the appropriate checks and balances because injunctions alone will not make up for injuries created by past law-breaking. This is especially important when suppression remedies are not available, as in most electronic privacy cases.

Advocates of privacy and those who view government officials as anything other than infallible paragons of virtue should unite to oppose the broad applications of immunity to violations of civil liberties. When the government is not held accountable for its violations of the law, the rule of law is a sham.