The US government doesn't have to reveal information about phone companies that may have spied illegally on Americans because those phone companies are an "arm of the government," the US Justice Department argued in a recent court case.

In a lawsuit over the Bush administration's decision to give immunity to telecom companies over its warrantless wiretapping program, the Justice Department argued that it doesn't have to publicly reveal what it discussed with the phone companies because those discussions were "inter-agency communications," explains Ryan Singel at Wired.

He cites a passage from a court document in which the department argues that "the communications between the agencies and telecommunications companies regarding the immunity provisions of the proposed legislation have been regarded as intra-agency...."

Singel was reporting on privacy watchdog group Electronic Frontier Foundation's two-year-long legal battle with the DoJ over access to those communications. In 2008, the Bush administration passed a law granting reotroactive immunity to phone companies that had participated in the administration's warrantless wiretapping program.

After news reports in 2007 suggested that the phone companies had lobbied the government to have those protections put in place, the EFF launched a freedom-of-information request to have discussions between the Justice Department and the phone companies made public. When the government refused, the EFF took the matter to court.

On September 24, a US District Court judge sided with the EFF and ordered the government to "release more records about the lobbying campaign to provide immunity to the telecommunications giants that participated in the NSA's warrantless surveillance program," the EFF stated.

The judge gave the Justice Department until last Friday to hand over the documents. But, late on Thursday, the government appealed for a 30-day stay of the judge's order. That order was refused, but the judge has delayed any further decisions on the case for another week.


Blogger Marcy Wheeler at FireDogLake says there are more interesting revelations about the government's attitude towards constitutional powers in the delay request it filed last week.

"The language attempting to protect agency discussions with Congress describe Congress as a mere appendage to the executive branch which did not, in 2008, have its own distinct constitutional interest in legislation concerning matters in which the executive branch had been found to have flouted duly passed laws," Wheeler writes. She cites the following passages from the court filing (PDF):

Given the purpose and role of the communications in the agencies’ own deliberations, the agencies have regarded their communications with Congress as intra-agency documents under the foregoing lines of authority....

...In providing the agencies with information and views about legislative options for use in the development of the Executive Branch’s own legislative position, Congress was participating in a common effort with the Executive Branch to advance the public interest.

"It is a fascinating comment on the state of separation of powers that Congress would be described by the executive branch as a mere appendage to the executive branch," Wheeler wrote.

She also argued that there is a fundamental contradiction in the government claiming that companies it contracted to do (potentially illegal) work would be treated as government agencies:

These were telecoms lobbying! Lobbying about programs that brought them and will continue to bring them ongoing business. But by treating the telecoms as agencies for this negotiation, the Obama Administration ... is treating this lobbying as part of the task that telecoms have been contracted to do by the government. We are paying telecom contractors ... to lobby our government and elected representatives (who are, at this point, just an appendage to the executive branch anyway) to make sure they continue to get that contracted work.