[Infowarrior] - Legal loophole emerges in NSA spy program

Thu May 18 08:01:44 EDT 2006

Legal loophole emerges in NSA spy program

By Declan McCullagh
http://news.com.com/Legal+loophole+emerges+in+NSA+spy+program/2100-1028_3-60
73600.html

Story last modified Wed May 17 20:08:38 PDT 2006

SAN FRANCISCO--An AT&T attorney indicated in federal court on Wednesday that
the Bush administration may have provided legal authorization for the
telecommunications company to open its network to the National Security
Agency.

Federal law may "authorize and in some cases require telecommunications
companies to furnish information" to the executive branch, said Bradford
Berenson, who was associate White House counsel when President Bush
authorized the NSA surveillance program in late 2001 and is now a partner at
the Sidley Austin law firm in Washington, D.C.
Bradford Berenson Bradford Berenson

Far from being complicit in an illegal spying scheme, Berenson said, "AT&T
is essentially an innocent bystander."

AT&T may be referring to an obscure section of federal law, 18 U.S.C. 2511,
which permits a telecommunications company to provide "information" and
"facilities" to the federal government as long as the attorney general
authorizes it. The authorization must come in the form of "certification in
writing by...the Attorney General of the United States that no warrant or
court order is required by law."

Information that is not yet public "would be exculpatory and would show
AT&T's conduct in the best possible light," Berenson said. But he did not
acknowledge any details about the company's alleged participation in the
NSA's surveillance program, which has ignited an ongoing debate on Capitol
Hill and led to this class-action lawsuit being filed in January by the
Electronic Frontier Foundation.

Some legal experts say that AT&T may be off the hook if former Attorney
General John Ashcroft, who was in office at the time the NSA program began,
provided a letter of certification. (Other officials, including the deputy
attorney general and state attorneys general, also are authorized to write
these letters.)

"If the certification exists, AT&T is in pretty good shape," said Marc
Rotenberg, executive director of the Electronic Privacy Information Center
and co-author of a book on information privacy law.

EFF's lawsuit alleges that the telecommunications company let the NSA engage
in wholesale monitoring of Americans' communications in violation of privacy
laws. Confidential documents that EFF unearthed during the course of the
suit--kept under seal and still not public--allege that AT&T gave the
government full access to its networks in a way that let millions of e-mail
messages, Web browsing sessions and phone calls be intercepted.

AT&T's ace in the hole?
If a letter of certification exists, AT&T could have an ace in the hole. A
second section of federal law says that a "good faith" reliance on a letter
of certification "is a complete defense to any civil or criminal" lawsuit.

During the hearing Wednesday before U.S. District Judge Vaughn Walker,
Deputy Assistant Attorney General Carl Nichols also hinted that such a
letter exists. Nichols said that there are undisclosed "facts that AT&T
might want to present in its defense."
AT&T's legal defense?

An obscure section of federal law says that AT&T may have legally
participated in the NSA surveillance program -- if, that is, it received a
"certification" from the attorney general.

That section says: "Notwithstanding any other law, providers of wire or
electronic communication service... are authorized to provide information,
facilities, or technical assistance to persons authorized by law to
intercept wire, oral, or electronic communications... if such provider...
has been provided with... a certification in writing by... the Attorney
General of the United States that no warrant or court order is required by
law, that all statutory requirements have been met, and that the specified
assistance is required, setting forth the period of time during which the
provision... is authorized... No provider of wire or electronic
communication... shall disclose the existence of any interception or
surveillance or the device used to accomplish the interception or
surveillance..."

But, Nichols added, those facts relate to classified information that are
"state secrets" and would jeopardize national security if they were
disclosed. A hearing on the Bush administration's request to dismiss the
case on national security grounds has been scheduled for June 23.

For its part, AT&T has remained silent about the extent of its alleged
participation in the NSA surveillance scheme, which initially was thought to
apply only to international calls but now may encompass records of domestic
phone calls and more. Verizon and BellSouth, for instance, took steps to
distance themselves from a USA Today report that said their call databases
were opened to the NSA. But AT&T wouldn't comment.

Marc Bien, a spokesman for AT&T, told CNET News.com on Wednesday: "Without
commenting on or confirming the existence of the program, we can say that
when the government asks for our help in protecting national security, and
the request is within the law, we will provide that assistance."

The next tussle in this lawsuit is likely to center on how far the "state
secrets" concept can extend. Is AT&T able to divulge the text of any
certification letter, without saying exactly what information it turned over
as a result? Must the mere existence of a certification letter remain
secret?

Injecting additional complexity is 18 U.S.C. 2511's prohibition on
disclosure. It says that telecommunication companies may not "disclose the
existence of any interception or surveillance or the device used to
accomplish the interception or surveillance"--except if required by law.
Unlawful disclosures are subject to fines.

EFF claims that the existence of a letter of certification should not be
classified. Cindy Cohn, an EFF attorney, told the judge on Wednesday that it
is "not a state secret because the statute has a whole process" governing
it.

"If you have a certification, let's see it," EFF attorney Lee Tien said in
an interview after the hearing.

For his part, Berenson, the former attorney for President Bush who's now
representing AT&T, complained about allegations that his client is violating
the law. It's unfortunate that EFF "chose to use words like 'criminal
tendency' and 'crimes,'" Berenson said. AT&T "is one of the great companies
of the United States. To attach those kinds of labels is reckless at best."

Berenson's biography says he worked for Bush on the "war on terrorism" and
the USA Patriot Act. Since leaving the White House, Berenson has written
letters to Congress (click here for PDF) calling for renewal of the Patriot
Act and has co-founded a group called Citizens for the Common Defence that
advocates a "robust" view of presidential authority. It filed, for instance,
an amicus brief (click here for PDF) before the Supreme Court in the Hamdi
case arguing that a U.S. citizen could be detained indefinitely without
trial because of the war on terror.