Yesterday the Justice Department filed a brief in Jewel v. NSA arguing that the statutory claims against the government for the NSA warrantless surveillance program cannot proceed because the causes of action under the Wiretap Act, the Stored Communications Act, and FISA are barred by the doctrine of sovereign immunity:

[I]n the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States. See 50 U.S.C. § 1810.

  This strikes me as a terrible argument. 18 U.S.C. § 2712 -- titled "Civil actions against the United States" -- is about as clear as you can get on this issue, it seems to me. It states:

Any person who is aggrieved by any willful violation of this chapter [the Stored Communications Act -- Ed.] or of chapter 119 of this title [the Wiretap Act -- Ed.] or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.

  (emphasis added)

  I see no limitations in that section to "a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute itself says "any willful violation," and it expressly covers all of Chapter 121 (the SCA), all of Chapter 119 (the Wiretap Act), and those explicit sections of FISA.

  Maybe I'm just missing something -- always a possibility. But it seems to me that the government's argument is that the court should read "any willful violation" to mean "a willful violation where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute just doesn't say that.