Gov't Covers for Alleged AT&T Cooperation with Warrantless Wiretapping/Data Mining, Raises State Secrets Privilege

Wired magazine's blog points out that the federal government "intends to invoke the rarely used "State Secrets Privilege" -- the legal equivalent of a nuclear bomb -- in the Electronic Frontier Foundation's class action lawsuit against AT&T that alleges the telecom collaborated with the government's secret spying on American citizens." I noted the initial filing of the lawsuit here (from this Wired article). In that initial article, Wired quoted extensively from Mark Klein, a retired AT&T communications technician turned whistleblower:

"While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T's internet service) circuits by splitting off a portion of the light signal," Klein wrote.

The split circuits included traffic from peering links connecting to other internet backbone providers, meaning that AT&T was also diverting traffic routed from its network to or from other domestic and international providers, according to Klein's statement.

The secret room also included data-mining equipment called a Narus STA 6400, "known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets," according to Klein's statement.

. . .

Klein said he came forward because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications.

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA," Klein's wrote. "And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens."

The New York Times pursues the Administration's State Secrets gambit here.

In a diary at the Daily Kos, Jeffrey Feldman identifies "the money quote from the filing":

"[T]he fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of Plaintiffs¿ allegations, either about AT&T or the alleged surveillance activities..."When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret."

He concludes: "When the President invokes an obscure page of English common law to quash an investigation into illegal spying at ATT--that's because there was illegal spying at ATT."

McJoan at the Daily Kos scoffs:

An inside source at AT&T provided documentation including "affidavits, lists of equipment and technical specifications related to tapping fiber-optic network links," and the administration has pulled out the big gun of executive privilege, but of course that's no admission of guilt.

After digging into background on the State Secrets privilege and other new secrecy measures, Glenn Greenwald writes:

When the NSA scandal began, the administration boastfully insisted that it had nothing to hide and welcomed as many investigations as could be brought, while their defenders claimed that such investigations would be wonderfully helpful to the President politically. Six months later, we still don't know who was eavesdropped on, whether those eavesdropped on had anything to do with terrorism, what was done with the information, and whether there are other warrantless eavesdropping programs besides the one the New York Times discovered. And the reason we don't know any of that is because the administration, consistent with their extremist love of government secrecy, has done everything possible to prevent the very investigations they claimed that they welcomed.

Christy Hardin Smith has more here.

It seems needless to say, but the Bush Administration has quite consciously given us little reason to doubt that other significant illegal spying programs exist beyond the specific illegal N.S.A. program admitted by the President and testified to by Al Gonzalez. (For a line by line journey through the qualifications Gonzalez repeately gave during his testimony, see the update to this post). We shall see whether the government is successful at shutting down this and other cases.