A lawsuit accusing AT&T of illegally collaborating in government
electronic surveillance will help terrorists communicate "more securely and
more efficiently'' unless it is promptly dismissed, a Bush administration
lawyer argued in a packed San Francisco courtroom Friday.
If the privacy-rights case is allowed to proceed, AT&T will have to admit
or deny that it gave the National Security Agency access to its telephone and
e-mail networks and database so the government could eavesdrop on
communications between Americans and suspected terrorists in other countries,
said Assistant Attorney General Peter Keisler.
The suit, the first of more than 30 now pending against major phone companies, was filed in January by the Electronic Frontier Foundation on behalf of AT&T customers. It alleges that the company has allowed the National Security Agency to intercept the phone calls and e-mails of tens of millions of customers for use in its program to monitor contacts with suspected foreign terrorists.
An admission either way by AT&T would betray "a state secret of the
highest order,'' he said.
When Chief U.S. District Judge Vaughn Walker pointed out that the alleged
cooperation of AT&T and other telecommunications companies has been widely
reported in the press, Keisler said public confirmation or denial would allow
terrorists to replace suspicion with certainty.
A "reasonable terrorist'' deciding how to contact cohorts weighs the risk
that communications on a commercial network will be intercepted against the
difficulties of finding other channels, Keisler said. By clarifying AT&T's
status, he said, "you are enabling them to communicate more securely and more
Also, he said, a confirmation of AT&T's role in the program would
"immediately heighten the risk that the company and its facilities would be
subject to attack.''
The suit, the first of more than 30 now pending against major phone
companies, was filed in January by the Electronic Frontier Foundation on behalf
of AT&T customers. It alleges that the company has allowed the National
Security Agency to intercept the phone calls and e-mails of tens of millions of
customers for use in its program to monitor contacts with suspected foreign
The suit seeks damages, potentially into the billions of dollars, and a
ban on AT&T's participation in the program.
President Bush acknowledged in December that the federal agency has
eavesdropped on communications between Americans and alleged terrorists abroad
without the court warrants required by a 1978 federal law. His claim that he
has the constitutional power to authorize the surveillance is being challenged
in another lawsuit in Michigan.
Walker, who also heard arguments by AT&T to dismiss the suit, did not
issue a ruling and gave no clear indication of which way he was leaning during
the three-hour hearing. But he seemed skeptical of the government's broadest
claim: that the entire subject of the lawsuit is a state secret, requiring
dismissal without further inquiry.
"The state secrets privilege is not unlimited,'' the judge told Keisler.
At another point, Walker questioned the government's reliance on a 1998
ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco dismissing
workers' lawsuits against a classified Air Force waste disposal program.
"Isn't this case different?'' he asked. In the 1998 case, "the whole
program of disposal was a state secret,'' the judge said.
Walker could also dismiss the case on narrower grounds, by deciding either
that AT&T's actions were authorized by the government; that the company does
not have to provide proof of federal authorization because its role, if any, is
a state secret; or that the individual customers have no right to sue because
they can't show that their calls or messages were intercepted.
Electronic Frontier Foundation lawyer Kevin Bankston argued that the
plaintiffs don't have to show that the federal agency monitored individual
calls, because they have evidence that AT&T, in cooperation with the
government, engaged in "wholesale surveillance of its customers.''
That evidence, he said, consists of company documents and a statement by
Mark Klein, a former AT&T technician, describing the installation in 2003 of
equipment at the company's building on Folsom Street in San Francisco that
allowed Internet traffic to be routed to the government. Klein reported that
only employees cleared by the National Security Agency were allowed into the
room, Bankston said.
But Keisler, the government's lawyer, said Klein's materials and a
supporting statement by J. Scott Marcus, an expert on telecommunications
networks, were legally worthless.
"With all respect to them, they don't know anything,'' Keisler said. He
said Klein's purported information about the federal agency's involvement
consisted of secondhand reports, and Marcus' statement was "a mixture of
hearsay and speculation.''
AT&T's argument for dismissal was that federal law protects communications
companies from being sued for taking part in government intelligence programs.
If the company had a role, which it refuses to confirm or deny, it was
merely a "passive instrument of the government,'' said AT&T lawyer Brad
Berenson. He also told Walker that the company had no obligation to consider
the legality of the program because it was solely the government's concern.
The judge said AT&T appeared to be arguing that "these programs are
essentially immune from any kind of review.'' Not quite, Berenson replied, but
the review should come from Congress, not the courts.
© Copyright 2006 San Francisco Chronicle