The Bush administration has launched a multipronged attack on a lawsuit
that accuses AT&T of collaborating with the U.S. government in illegal
electronic surveillance, arguing that customers can't prove their phones were
tapped or that the company or the government broke the law -- and that, in
any event, the entire case endangers national security.
Those assertions in a move for dismissal were based on arguments and
evidence that the government submitted to a federal judge under seal, keeping
them secret from the public and from the privacy-rights group that filed the
suit on behalf of AT&T customers.
The sealed documents and a heavily edited public version were submitted in
federal court in San Francisco early Saturday along with declarations from John
Negroponte, the director of national intelligence, and Lt. Gen. Keith
Alexander, director of the National Security Agency. Both officials attest to
the need for secrecy as a reason to keep the lawsuit, filed by the Electronic
Frontier Foundation, from going forward.
"Any attempt to proceed in this case will substantially risk disclosure of
... privileged information and will cause exceptionally grave damage to the
national security of the United States,'' Alexander said in a public filing
accompanying his sealed statement.
The foundation filed suit in January accusing AT&T of illegally giving the
NSA access to its voice and data network and its customer databases to help the
agency's surveillance program.
The suit was accompanied by documents obtained by a former AT&T technician
describing equipment installed in the company's San Francisco office that
allegedly would enable the federal agency to sweep up huge amounts of data that
it could screen for targeted information. AT&T plans to ask a federal judge
Wednesday to declare the documents, which have been sealed, to be trade secrets
and order them returned.
The former employee, Mark Klein, handled problems on Internet fiber optic
circuits and said in a statement that the equipment was being attached to the
circuits in San Francisco and other AT&T offices. The equipment allowed the
National Security Agency to conduct "vacuum-cleaner surveillance of all the
data crossing the Internet,'' he said.
His lawyers said in a court filing that the government had never
classified as a secret anything that Klein saw.
In Saturday's filing, government lawyers wrote that "the lawfulness of the
alleged activities cannot be determined without a full factual record, and that
record cannot be made without seriously compromising U.S. national security
Without evidence of how the program operated and whom it targeted --
evidence that the Justice Department argued can't be made public -- the
plaintiffs have no chance of proving the essential elements of their case, the
Those elements are:
- That President Bush exceeded his legal authority by authorizing
wiretaps and e-mail interception without a warrant;
- That innocent Americans not in contact with al Qaeda or affiliated
groups had their calls or messages intercepted;
- That AT&T participated in the program;
- And that any participation by AT&T lacked authorization from the
government. The Justice Department endorsed AT&T's argument that the plaintiffs
must prove that the company failed to obtain written approval from top federal
The administration asked Chief U.S. District Judge Vaughn Walker to hear
its dismissal motion June 21, the day Walker is scheduled to consider the
Electronic Frontier Foundation's request for an injunction that would prohibit
AT&T from any further cooperation in the surveillance program.
Bush acknowledged in December that he had authorized the National Security
Agency to intercept phone calls and e-mails between U.S. residents and terror
suspects abroad without the court approval required by a 1978 federal law.
The alleged role of telecommunications companies gained new prominence
last week when USA Today reported that the National Security Agency had paid
AT&T, Verizon and Bell South for the telephone records of tens of millions of
Americans. The government's goal reportedly was to find calling patterns that
could indicate communications with terrorists. (BellSouth later said a
"thorough review" had found no indication that it had given such records to the NSA.)
The government's dismissal motion in the San Francisco case against AT&T
relies on the "state secrets'' privilege that the Supreme Court recognized in a
1953 ruling allowing the government to keep military secrets out of court.
Lower courts, including the Ninth U.S. Circuit Court of Appeals in San
Francisco, have ruled that a lawsuit must be dismissed if it can't be litigated
without the risk of exposing military secrets.
A court's consideration of the Electronic Frontier Foundation suit "would
require confirmation or denial of the existence, scope and potential targets of
alleged intelligence activities, as well as AT&T's alleged involvement,''
information that cannot be revealed "without causing exceptionally grave danger
to the national security,'' government lawyers said.
Their brief repeatedly referred to arguments that were filed under seal,
along with the sealed declarations of Negroponte and Alexander.
Kevin Bankston, a lawyer with the foundation, said Monday that it would be
difficult for its attorneys to contest government arguments they hadn't been
allowed to see. But he said the factual claims in the lawsuit have already been
widely reported in the press, and to some extent conceded by the government,
without harming national security.
"We're seeking to protect national security by protecting millions of
Americans from a government that is colluding with telecommunications companies
in spying on their phone and Internet communications,'' Bankston said.
He also said the plaintiffs were not arguing that the government had
monitored particular calls or messages, only that their phone and Internet
records had been turned over to the government illegally, without a warrant or
suspicion of wrongdoing. That should be enough to allow them to sue, Bankston
said, unless AT&T produces evidence of valid authorization by the government.
The plaintiffs are four AT&T customers. The Electronic Frontier Foundation
is proposing that the case become a class action on behalf of all affected
Ann Beeson, an attorney with the American Civil Liberties Union, said she
anticipates a similar government dismissal motion Friday in the ACLU's suit on
behalf of private citizens who say they have reason to believe their calls and
messages have been or will be monitored. That suit, filed in a Michigan federal
court, seeks to halt the federal surveillance program.
"There are no secrets here,'' Beeson said. "All the facts that are needed
to decide the case are known and conceded: that the government wiretapped
without a warrant and that it did so on U.S. soil.''
©2006 San Francisco Chronicle