In a far-reaching decision Friday, the 4th Circuit Court of Appeals indemnified improper government spying, protecting the offending federal agents from punishment and making it nearly impossible for harmed citizens to ever receive justice.
The decision comes in Attkisson v. the Department of Justice and the FBI for the long-term forensically-confirmed government computer intrusions of her personal and work devices while she was an investigative correspondent for CBS News.
The court ruled that the Attkisson lawsuit cannot move forward because she has been unable to identify by name the federal agents involved in the spying, as the Department of Justice has blocked discovery for four years.
In a dissenting opinion, Fourth Circuit Court Judge James Wynn blasted the decision stating:
Not only should we disapprove of the tactics the government used to run out the clock on Attkisson’s claims, but we should also reject the troubling “game plan” it provided for the government and private parties to prevent disclosure of—and, therefore, responsibility for—their potentially unconstitutional or illegal electronic surveillance activities.Judge James A. Wynn, Fourth Circuit Court of Appeals
Attkisson filed suit four years ago for the forensically-confirmed government intrusions into her personal and work devices while she was an investigative reporter at CBS News. Multiple independent forensic exams revealed, among other violations, longterm monitoring of Attkisson's electronics with use of government International Protocol (IP) addresses, proprietary government intelligence software, keystroke monitoring and secret activation of Skype to listen in on microphone and exfiltrate files. The intruders planted classified documents in Attkisson's CBS computer, accessed her photos and passwords, and gained access to the broader CBS News computer system.
According to the government, there was no court warrant against Attkisson authorizing the surveillance.
In November 2017, the trial court judge dismissed some of Attkisson's claims saying that resolving them would require an “inquiry into the sensitive executive branch discussions and decisions.” Attkisson continued the lawsuit with only limited discovery permitted. Even then, the Department of Justice obstructed all of Attkisson's attempts at meaningful discovery and refused to turn over any evidence.
Attkisson never got a meaningful opportunity to pursue her claims because the government did everything in its power to run out the clock. And just as the Tar Heels had great success running the four corners, the government’s strategy worked.Judge James A. Wynn, Fourth Circuit Court of Appeals
In a statement, Attkisson attorney Paul Berman, a law professor at The George Washington University, wrote:
The...decision...effectively makes it impossible for any US citizen to challenge the government in court even if there is compelling evidence of unlawful surveillance.Paul Berman, Attkisson Attorney and Law Professor at The George Washington University
The controversial court decision comes amid the Justice Department announcing deeper investigations into the circumstances under which government agents surveilled or spied on the Trump campaign in 2016.
Attkisson issued a statement saying:
In my case, the Department of Justice has refused to investigate its own so I was forced to self-fund a fight for justice on behalf of myself and all other U.S. citizens in civil court. It's stunning to think that the court is opening the door to unlimited, unlawful spying on U.S. citizens with no threat of punishment as long as the government can keep the names of its agents secret from the victim. The court's actions means it is virtually impossible for ordinary U.S. citizens to receive justice when offended by a powerful government that has endless resources and tax money to obstruct.Sharyl Attkisson, Journalist and Plaintiff
Read the full statement from Attkisson's lawyers, Berman and Tab Turner, below:
The 2-1 panel decision that the 4th Circuit allowed to remain in effect effectively makes it impossible for any US citizen to challenge the government in court even if there is compelling evidence of unlawful surveillance.
Significantly, the court did not rule on or challenge the accuracy of Sharyl Attkisson's factual assertions or the physical evidence demonstrating state-sponsored surveillance; instead it said that if the government refuses to turn over evidence for long enough, it can effectively run out the clock on the litigation.
Here, the government has stonewalled Ms. Attkisson literally for years, but instead of criticizing the government for its failure to provide requested discovery, the two judges in the majority turned the facts on their head and actually blamed Attkisson for being stonewalled and dismissed the case because of her supposed failure to get the information the government is unwilling to provide.
Judge Wynn's clear-eyed and passionate dissent in the case properly recognizes that "under the government's playbook…plaintiffs would be deprived all opportunity to challenge the legality of most, if not all, these electronic surveillance efforts, notwithstanding the significant intrusion on individual rights posed by such surveillance.”
The decision does leave open the possibility that Attkisson can refile in the District Court and start again, so hopefully justice can still be done.
Attkisson is considering next steps.
--Paul S. Berman and Tab Turner