A federal court ruled 2-1 last week against allowing Sharyl Attkisson to revive her suit over the Obama administration’s alleged efforts to hack her personal devices. The ruling spells doom for Americans victimized by government hackers in the future.
The ruling from the Fourth Circuit Court of Appeals affirmed a lower court’s dismissal of her case against President’s Obama Attorney General Eric Holder, “six unknown agents” and others. Forensic investigators working for Attkisson — a former reporter for CBS — found that proprietary government software was used to hack her home and business computers, but the court denied her any right to pursue further evidence.
The case represents a serious blow to the Fourth Amendment, which guarantees our right to be secure in our “papers and effects.”
The dissenting judge employed the colorful analogy of legendary North Carolina basketball coach Dean Smith’s “four-corners” clock-killing strategy, and said the government now has a “play book” for hiding evidence when it uses clandestine methods to hack the computers of Americans. The dissent even called the government’s self-serving actions creating the obstruction “Kafkaesque.”
In her book “Stonewalled,” Attkisson chronicled her harrowing experience of trying to get to the bottom of what clearly appeared to be the federal government’s intrusion into her computers after she reported on the Obama administration’s scandals — such as the 2012 attack on the embassy in Benghazi. Holder allegedly attempted to intimidate CBS into silencing her. A major, plausible issue in the case is whether he — already known as an allegedly dirty player once held in contempt of Congress — directed others to hack her computers.
We’d like to think that the Department of Justice and our judicial system are in the business of fighting lawbreaking, not protecting it. But in a sophisticated, taxpayer-financed legal game of “monkey in the middle,” DOJ lawyers used legal maneuvering to dismiss Attkisson’s case, move it from one court to another, and delay her lawyers’ attempts to expedite discovery.
Unfortunately, as I’ve previously written, the rules are rigged to protect government lawbreaking. The Fourth Circuit’s latest ruling is the old “nothing to see, here, people” type of decision. It relies on arcane judicial doctrines, and it uses assumptions about congressional intent in assessing Fourth Amendment damages “in the areas of electronic surveillance and intrusions into electronic devices.”
The dissenting judge noted such deference is not typically given to private citizens when they face the same charges for electronic intrusions, and “effectively reward[s] the government for its intransigence.” Government lawbreaking is thus unfairly protected.
As to the court’s ruling that Eric Holder has “qualified immunity” and could not be sued, even the dissenting judge joined with the majority. But as the great 17th century English jurist Sir Matthew Hale informed us, the reason law enforcement officials originally received a generous level of immunity is that it encouraged them to risk life and limb to protect the community, often in situations that required snap judgments.
In this case, immunity extends to high officials wearing three-piece suits and Gucci loafers, sitting comfortably in finely appointed, armed, and secure Washington offices. It allows them to act as puppeteers pulling strings and directing clandestine hacking against private citizens.
Attkisson has already indicated she may appeal the court’s decision. Perhaps new Attorney General William Barr understands that the DOJ’s reputation is in tatters, and to restore respect for his institution will direct his department to concede. I’m not holding my breath. Rarely is the right thing done by the administrative state when it comes to its own lawbreaking.
In the meantime, all Americans have a vested interest in the outcome of Attkisson’s case. The government created a playbook to hack our computers, and it is now judicially blessed “to follow in future cases,“ according to the dissent.
Attkisson, though, has her mind set on getting justice for not just her, but all of us. However, as George Harrison sang, it’s gonna take money; it’s gonna take plenty of money. Attkisson has established a GoFundMe page where those who want to see their terrible precedent overturned can donate. She’s up against government lawyers playing with unlimited taxpayer dollars, so their game plan includes draining her of resources to fight.
Mark J. Fitzgibbons is president of corporate affairs at American Target Advertising, Inc., America’s oldest and largest conservative direct marketing and fundraising agency. He has litigated constitutional cases, and is co-author with Richard Viguerie of the e-booklet The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.