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Judge Rules Against Government in NSA/AT&T Wiretapping Case

By Martin H. Bosworth
ConsumerAffairs.com

July 20, 2006

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The California federal judge overseeing the case against the NSA and AT&T for the alleged illegal domestic surveillance of millions of Americans has denied the government's motion to dismiss the case based on the "state secrets" privilege.

The U.S. government demanded that the case brought by the Electronic Frontier Foundation (EFF) against the NSA be dismissed under the "state secrets" privilege, as it claimed that while the NSA program was classified and could not be discussed, attempting to bring the case to court would force the government to reveal sensitive information that might damage national security.

But in a massive 72-page ruling, District Chief Judge Vaughn R. Walker ruled that because so much of the information surrounding the NSA wiretapping case had already been made public, it was impossible to exercise the "state secrets" option.

"If the government's public disclosures have been truthful, revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security," Walker said. "And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements."

EFF brought its case against AT&T for, as its case file summation puts it, " [opening] its key telecommunications facilities and databases to direct access by the NSA and/or other government agencies, thereby disclosing to the government the contents of its customers' communications as well as detailed communications records about millions of its customers, including the lawsuit's class members."

Wired magazine published an account from former AT&T technician Mark Klein in May that claimed the existence of a secret "spy room" in AT&T's San Francisco office. The "spy room" was allegedly designed for the NSA to employ technology to "vacuum-search" customers' communications without their knowledge.

In his ruling, Walker noted that even if the allegations brought by Klein and others like him could be disputed, AT&T itself had made numerous references to assisting law enforcement authorities, and that it has recently disclosed that it 'performs various classified contracts, and thousands of its employees hold government security clearances.'"

The Bush administration has refused to allow any investigation into the existence of the NSA program, even though it claims such programs are necessary to track terrorist activity. Attorney General Albert Gonzales recently testified before Congress that President Bush personally blocked an investigation by the Justice Department into the NSA program, by denying the investigators clearances necessary to gain access to the records.

Ironically, it was actions such as these that helped provide enough legal basis for Walker to issue his ruling.

"The government has disclosed the general contours of the 'terrorist surveillance program,'" Walker said, "which requires the assistance of a telecommunications provider, and AT&T claims that it lawfully and dutifully assists the government in classified matters when asked."

Given the massive scope of the surveillance program, encompassing domestic telephone traffic as well as foreign, "it cannot reasonably be said that the program as alleged is limited to tracking foreign powers," Walker said. "Accordingly, AT&T's alleged actions here violate the constitutional rights clearly established [in previous litigation]."

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