[Infowarrior] - Watergate Echoes in NSA Courtroom

[Richard Forno]

Watergate Echoes in NSA Courtroom
http://www.wired.com/news/technology/1,71227-0.html
By Kevin Poulsen
17:00 PM Jun, 23, 2006

SAN FRANCISCO -- It was perhaps inevitable that someone would compare
President Bush's extrajudicial wiretapping operations to Richard Nixon's
1970s-era surveillance of journalists and political enemies. Both were
carried out by Republican presidents; both bypassed the courts; both relied
on the cooperation of U.S. telecommunications companies.

But there's some irony in the fact that it was AT&T to first make the
comparison in a federal courtroom here, while defending itself from charges
of complicity in Bush's warrantless spying.

Company attorney Bradford Berenson cited the case of The New York Times
reporter Hedrick Smith, who'd been illegally wiretapped by Nixon's Plumbers
as part of an investigation into White House leaks. In 1979, the U.S. Court
of Appeals for the District of Columbia Circuit ruled that Smith couldn't
sue Chesapeake & Potomac Telephone Company -- then part of AT&T's Bell
System -- for installing the wiretaps at the Plumbers' behest.

The Nixon Defense was one of several arguments offered Friday by AT&T and
the Justice Department in their bid to win summary dismissal of the
Electronic Frontier Foundation's class-action lawsuit. The suit accuses the
company of providing the National Security Agency with access to customer
and non-customer internet traffic passing through AT&T's systems, without a
warrant.

Without confirming the allegations, AT&T said if it is cooperating with the
NSA, it can't be held responsible, because -- as in the Nixon case -- it's
serving as a "passive instrument or passive agent of the government," said
Berenson.

"AT&T could refuse, could it not, to provide access to its facilities?"
countered U.S. District Judge Vaughn Walker.

Berenson replied that AT&T would refuse any clearly illegal request, and a
courtroom overflowing with EFF supporters broke into murmured, sardonic
laughter. In the back, late-coming observers unable to win a seat pressed
their faces against the windows of the courtroom door.

The government's surveillance activities of the 1970s were an ever-present
ghost in the nearly three-hour-long hearing Friday, in a case that's
emerging as a crucial challenge of the law passed in response to
Watergate-era abuses. The Foreign Intelligence Surveillance Act, or FISA,
requires the government to obtain a court order before performing electronic
surveillance in national security cases, except for surveillance targeting
only foreign nationals or for emergency wiretaps lasting no longer than 72
hours.

A related law allows private parties to sue a telecommunications company for
cooperating in government surveillance that doesn't meet FISA's requirements
or the demands of criminal wiretap laws. But that law grants companies
immunity if the U.S. attorney general first presents them with a letter
certifying that the surveillance is legal.

AT&T won't confirm or deny that it received such a letter. But Walker, who's
privy to the government's classified evidence in the case, spent some time
posing questions about how a letter would affect the litigation's outcome.
EFF attorney Kevin Bankston argued that AT&T has a duty to know the law, and
wouldn't be protected by a written request to assist in an illegal
surveillance operation. "That piece of paper could not authorize the conduct
that we allege here," Bankston said.

The government argued that the existence or nonexistence of a letter from
the attorney general addressed to AT&T is one of the many secrets that
cannot be disclosed without causing grave damage to the United States. The
Justice Department asked that the entire case be dismissed on national
security grounds under the rarely used "state-secrets privilege."

Never passed by Congress, the state-secrets privilege has its roots in
English common law and was cemented into American jurisprudence by a
landmark 1953 Supreme Court case titled U.S. v. Reynolds. In Reynolds, the
widows of three men who died in a mysterious Air Force crash sued the
government, and U.S. officials quashed the lawsuit by claiming that they
couldn't release any information about the accident without endangering
national security. The Supreme Court upheld the claim, establishing a legal
precedent that today allows the executive branch to block the release of
information in any civil suit -- even if the government isn't the one being
sued.

"It is an area of the law where the degree of deference from the court to
the executive is at its highest," said Justice Department attorney Peter
Keisler, who argued Friday that the case must be dismissed because its basic
allegations can't be addressed without harming national security.

Acknowledging or disavowing any cooperation between the NSA and a particular
telecommunications company, for example, would help terrorists communicate
securely. "What the terrorist does when he decides to communicate ... is
balance the risk that a particular communication will be intercepted against
the operational inefficiencies" of finding another way to talk, said
Keisler. Identifying a company as cooperating with the government would take
some of the guesswork out of that assessment, and could even subject the
company to terrorist reprisals.

But Walker showed some signs that he was taking a more nuanced look at the
state-secrets privilege, and might consider making some information -- such
as the existence or nonexistence of the attorney general's letter --
available for use in the case. "The state-secret privilege is not
unlimited," Walker said.

Walker asked if the government would oppose the court retaining an expert to
help sift through the classified evidence and evaluate its sensitivity;
Keisler argued that such an analysis wouldn't show proper deference to the
executive branch, and suggested it might prove problematic to grant such an
expert the necessary security clearance.

For its part, EFF argued that the case can go forward without access to any
government documents or testimony, thanks to the written statement and
papers provided by former AT&T technician Mark Klein, which purports to show
AT&T establishing a secure room in its San Francisco switching center to
transmit intercepted internet traffic to the NSA.

EFF technical consultant J. Scott Marcus, a former FCC technology adviser,
performed an analysis of the documents. Marcus concluded that AT&T's taps
suck down about 10 percent of all U.S. internet traffic. The operation can
pick up traffic transiting AT&T's network on its way somewhere else, so even
non-AT&T customers are intercepted, he wrote.

"AT&T has constructed an extensive -- and expensive -- collection of
infrastructure that collectively has all the capability necessary to conduct
large-scale covert gathering of (internet protocol)-based communications
information, not only for communications to overseas locations, but for
purely domestic communications as well," Marcus wrote.

The government dismissed Klein's and Marcus' statements as "hearsay and
speculation" Friday.

"They don't know as much as they think they know," said Keisler. AT&T
agreed. "Pieces of cable go into a room," said company attorney Bruce
Ericson. "That's as far as they take us."

There were few clues to where the judge was leaning Friday, but as the
hearing drew to a close, he asked both sides how they would want to proceed
should he deny the government's motion to dismiss -- suggesting he's
considering allowing some portion of EFF's case to proceed.

Speaking to reporters outside the courthouse, whistle-blower Klein said the
evidence he provided was sufficient to make the case, without exposing any
national security secrets. AT&T, he said, helped with "massive interception,
without warrant, of everyone's information."