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Today's Must Read
What's happening in Room 641A of 611 Folsom Street in San Francisco remains one of the most closely-held secrets in the U.S. government. According to a former AT&T employee who assisted two technicians cleared to work in the telecommunications complex on Folsom Street, 641A served as a vacuum cleaner for phone calls and e-mails of terrorism suspects, routing them to the National Security Agency.
The claims made by the ex-employee, Mark Klein, are the basis for a class-action lawsuit against AT&T and affiliated telecoms for illegally harvesting information from U.S. citizens. Tomorrow, reports The Washington Post, judges from the Ninth Circuit Court of Appeals will hear arguments as to whether the class action should go forward -- or whether the government is right that 641A is a state secret, and can't be litigated without compromising national security. The answer probably won't be determinative -- both sides have vowed to appeal up to the Supreme Court -- but if the case is shut down, a public window on the Bush administration's warrantless surveillance activities, recently blessed by a Congressional overhaul of the Foreign Intelligence Surveillance Act, will slam shut.
As many have suspected since the 2005 disclosure of the warrantless surveillance program, what Klein has described at Room 641A is a capacity that far exceeds the technical ability to focus on mere international communication. Essentially, it's part of a West Coast-based constellation of communication hubs of fiber optic cables that the government instructed telecoms to physically tap.
Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said "splitter cabinets" similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.[J. Scott] Marcus, the former FCC adviser, said in a legal declaration recently unsealed in the case that the operation described by Klein "is neither modest nor limited" and was far more extensive than needed if it was focused only on international communications or on tasks other than surveillance.
"I conclude that AT&T has constructed an extensive -- and expensive -- collection of infrastructure that collectively has all the capability necessary to conduct large-scale covert gathering of [Internet protocol]-based communications information, not only for communications to overseas locations, but for purely domestic communications as well," said Marcus, a veteran computer network executive who worked at GTE, Genuity and other companies before joining the FCC.
The Justice Department contends that the whole enterprise is a state secret, and that both the class action and a related suit -- filed by an al-Qaeda-affiliated Islamic charity that says it has proof of being wiretapped -- need to be accordingly dismissed. Klein, according to the DOJ, was a mere "line technician who . . . never had access to the 'secret room' he purports to describe." (Needless to say, it's not confirming whether 641A is anything like what Klein says it is.) Challenging the standing of the plaintiffs to sue is important: judges dismissed a similar case brought by the ACLU last year on the grounds that no one involved in the suit could prove he or she had been surveilled -- the occurrence of which, of course, is itself secret.
But if the case progresses, it underscores why President Bush sought widespread retroactive liability protection for telecoms that, in his famous phrase earlier this month, "are alleged to have assisted our Nation following the attacks of September 11, 2001." Before the program was brought under the Foreign Intelligence Surveillance Act for secret-court review, telecoms simply complied (or, perhaps in some cases, didn't; we don't know) with administrative demands for culling surveillance despite the law. Should the Ninth Circuit panel reject the government's arguments and allow the case to proceed, even those who can't prove they've been surveilled might have grounds to sue telecom companies, a nightmare scenario to a Bush administration that fears a chilling effect on compliance with the National Security Agency.
The case is set to go before the three-judge panel of the Ninth Circuit tomorrow at 2 pm West Coast time. Stay tuned.
Update: This post originally misreported that the panel will decide the two cases tomorrow, when in fact it will hear arguments on them and subsequently rule. I regret the error, and thank reader KB for pointing it out.
Comments (42)
Austin Cooper wrote on August 14, 2007 9:53 AM:If We, The People (that is to say, the citizenry) prevail here, the 'administration' will immediately appeal to the Supreme Court.
I can think of four, and possibly five, paid shills on that body who who will deliver for 'lil Boots, no qustions asked.
drational wrote on August 14, 2007 9:59 AM:Well, regardless of the court cases, they have standing to testify in front of congress.
If the cases are blocked, then The SJC and HJC should invite Klein and the Lawyers from al Harimain to spend some time in hearings, and publish the details of the evidence Eggen purports to show surveillance of purely domestic communication.
Punchy wrote on August 14, 2007 10:10 AM:I have a feeling that Bush will claim telecoms immune to lawsuits no matter what any law says. He will claim it's a matter of national security that this continues.
Dems will acquiesce and nod in agreement.
thepeoplechoose wrote on August 14, 2007 10:14 AM:There has to be some form of oversight even in instances where national security is a feature of surveillance efforts. Without such oversight, judicial or otherwise, various aspects of our constitutional guarantees of freedom are threatened. It isn't possible to question the need for oversight because any judge or other person who has even a minimal grasp of human weaknesses knows that a system that can be corrupted will be. It is thoroughly understood that a democratic state must, in all instances and at all times, operate under a system of controls that cannot be abandoned if the democracy is to prevail. I find it absolutely improbable the WH and the DOJ don't understand this principle. And in that regard I can only conclude they have committed wrongdoing and are trying desperately to avoid having that wrongdoing revealed.
regular lurker wrote on August 14, 2007 10:25 AM:How do we know AT&T won't sell the information its assembled? They are after all a for-profit company.
mpower1952 wrote on August 14, 2007 10:41 AM:How do we know AT&T won't sell the information its assembled?
Exactly what info is that? ha This system is a catch 22 if ever there was one.
And what would happen to a whistle blower from AT&T? Or how about the individual employees who did the deed? Is Bush worried about them being sued?
I know the country will get through this awful time but I do worry at what cost, monetarily, emotionally, civically, and the list goes on.
KYJurisDoctor wrote on August 14, 2007 10:44 AM:The government needs to do something about illegal aliens instead of trying to spy on law abiding citizens.
Bob's not Right wrote on August 14, 2007 10:46 AM:This seems to be my theme but I will say it again.
This is just the discovery phase, all the Senate Judiciary needs to do is keep it alive and keep gathering evidence. It would seem pointless to try and bring prosecutions that could be wiped away by a Pardon or Commutation.
The Telcom's need to worry about after 2009 if the Dems stay in power(and change Reid/Pelosi leadership).
I now know why the Justice Department has been retooled and the kool-aid drinking midlevel appointiees have been placed. The Rovian Republican majority was the key to not having the house of cards fall on all the private contractors and telcoms.
This just may get interesting.
Richard L. Adlof wrote on August 14, 2007 10:48 AM:Whatever happened to "Congress shall enact no "ex post facto" laws?
The Chimp in Charge still NEEDS to fry.
Anonymous wrote on August 14, 2007 10:52 AM:This is not without precedent.
According to “The Encyclopedia of Espionage,” by Polmar and Allen, Grammercy Books, 1997, the Army Security Agency carried out domestic intel projects in Operation Shamrock which gave Army Intel access to all foreign cables and communications between foreigners and Americans. It was an illegal continuation of WW2 activities.
The ASA performed signals intel between 1945 and 1977 when its activities were absorbed by other groups.
The domestic intel ended in 1975.
Jane wrote on August 14, 2007 10:52 AM:xxx
If all else fails, boycott.
Bearpaw wrote on August 14, 2007 11:04 AM:Folsom Street in San Francisco?
Okay, that'd be amusing if it wasn't such a not-funny thing.
pol wrote on August 14, 2007 11:10 AM:Spencer, in the headline on the front page, the word should be "warrantless," with two R's. Sorry. It's a pet peeve.
Thrackazog wrote on August 14, 2007 11:13 AM:Jane @10:52 ET:
Unfortunately, boycotting is not an option. Sure you can avoid subscribing to AT&T, but you can't choose where your telephone and Internet traffic gets routed. The story indicates that they've tapped into an uber-hub through which practically every bit of information flows.
Ken in Ct. wrote on August 14, 2007 11:16 AM:Want to run a chill up the spine of a Dittohead? Ask them "How will you feel when Bush has to turn over the keys to that room to Hillary Clinton?"
They'll become just as outraged as us very, very quickly.
steambomb wrote on August 14, 2007 11:17 AM:Of course the governments case has one sticky problem. THEY WERE WIRETAPPING AMERICAN CITIZENS BEFORE SEPT 11 2001.
moondancer wrote on August 14, 2007 11:18 AM:I think we're to the point where the main objective is restore the republic. Sure it would be nice to frog march bushco to fed penitentiary, but that looks remote at best.
lysias wrote on August 14, 2007 11:28 AM:Bob's not right is on the right track, just keep the investigation open and running, hope these guys actually leave office, then repeal the entire patriot act, expand the supreme court to 11, and see if we can undo this conspiracy.
"Wired" reported last week that DOJ filed a motion for the civil cases against the telecoms before Judge Vaughn Walker to be dismissed on the grounds that the new FISA law renders them moot.
Does anybody know if this is true? (If it is true, it appears to give Judge Walker and/or the Ninth Circuit to rule on the constitutionality of the new law.)
lysias wrote on August 14, 2007 11:30 AM:"Wired" reported last week that DOJ filed a motion for the civil cases against the telecoms before Judge Vaughn Walker to be dismissed on the grounds that the new FISA law renders them moot.
Does anybody know if this is true? (If it is true, it appears to give Judge Walker and/or the Ninth Circuit jurisdiction to rule on the constitutionality of the new law.)
bryrock wrote on August 14, 2007 11:46 AM:Interesting. Just looked up 611 Folsom on Google Maps. The new "Street View" option is available for all of the surrounding blocks, but not that one (though you can see it from the perpendicular street (2nd Street).
Mike H. wrote on August 14, 2007 11:50 AM:It seems our nation needs to wrestle with how to handle criminal, or allegedly criminal, activity that is classified secret by the executive branch. Apparently the executive is able to avoid prosecution of anti-constitutional, hence illegal, activity simply by branding it a national security secret.
That makes us a nation of secrets, not a nation of laws.
Is that what we want?
Jake wrote on August 14, 2007 11:50 AM:Want to run a chill up the spine of a Dittohead? Ask them "How will you feel when Bush has to turn over the keys to that room to Hillary Clinton?"
Sadly, this doesn't slow them down. The approved reponse is:
"Hitlery won't respect the bounds of the law regardless of what regulations are passed, so there is no cause to worry. Hitlery Klintoon will do whatever she wants."
lonesomerobot wrote on August 14, 2007 11:55 AM:sure, wait for the court to decide this.
forget boycotts (although i am proud to say i told at&t to screw off for good this month). forget waiting for a court or the wisdom of our ruling class. they've let this travesty carry on too long already.
really, what should be happening is a massive citizen assault on this building. yes, i said assault, but peaceful assault. organize, go there and shed some light. let them know firsthand we're tired of all the secrecy and all the lies.
if we know the address, and even the very room, there's a simple way to get the answers we want. we, as a nation, are far too complacent.
Dennis wrote on August 14, 2007 11:56 AM:Whatever happened to "Congress shall enact no "ex post facto" laws? Posted by: Richard L. Adlof Date: August 14, 2007 10:48 AM.
If we admit it, and I think more people do than do not, we have a Congress that isn't worth a damn. The Republicans mostly say, "Yes Sir!" and the Democrats roll over, wringing their hands and saying "Woe is us, their ain't nothing we can do."
And if this should go before the Supreme Court, well, the Supreme Court is stacked against the American people.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
Mark wrote on August 14, 2007 12:17 PM:I agree with lonesomerobot--are there people picketing out front? Something like that could actually get warrantless wiretapping into the news. Especially with Constitution-zapping being deemed unnewsworthy to the MSM.
Yeah, maybe just the local news, but you gotta start somewhere....
Moondancer wrote on August 14, 2007 12:33 PM:Frontline ran a chilling interview with Klein, which is available online. It's well worth taking the time to read.
http://www.pbs.org/wgbh/pages/frontline/homefront/interviews/klein.html
Kathryn wrote on August 14, 2007 1:06 PM:Now we know that we can retrieve the RNC Rove email messages.
jawbone wrote on August 14, 2007 1:13 PM:"...It is thoroughly understood that a democratic state must, in all instances and at all times, operate under a system of controls that cannot be abandoned if the democracy is to prevail. I find it absolutely improbable the WH and the DOJ don't understand this principle. And in that regard I can only conclude they have committed wrongdoing and are trying desperately to avoid having that wrongdoing revealed."
Posted by: thepeoplechoose
Date: August 14, 2007 10:14 AM
They do completely understand the power of oversight, which is exactly why they fight against it and checks and balances so fiercely. We have people in power who do not believe in the underlying tenets of our Democratic Constitutional Republic. Amazingly, they are getting away with it.
Bruce Fein and John Nichols said over and over that the only remedy for this illegal abrogation of powers is impeachment--even if they are not impeached (this senate has too many Republicans to ever overturn BushCo), the impeachment process becomes the marker for following administrations: There is a line, it is here delineated, and you may not cross it at peril of your remaining in office.
I hope.
Security word "seem"--It seems the darkest before the dawn? Or, when it seems the worst with this maladministration, it can always get worse....
dustbunny44 wrote on August 14, 2007 1:26 PM:Read James Bamford's books on the NSA (Body of Secrets, The Puzzle Palace)to remember that the government has had access to and been intercepting calls and communications since there ever were international calls and communications - the early 20th century. They have been doing it with or without approval, but supposedly not when strictly prohibited. It's not hard to imagine today's corral full of crooks doing whatever the hell they want, lying to anyone that asks, and lying to themselves about how necessary and important it is, how our rights are a crock that prevents the execution of real justice, and if they are doing it at all.
Hillbilly wrote on August 14, 2007 2:14 PM:Let them deny the punishment as it's being applied too.
Frontline ran a chilling interview with Klein, which is available online. It's well worth taking the time to read.
http://www.pbs.org/wgbh/pages/frontline/homefront/interviews/klein.html
Posted by: Moondancer
Date: August 14, 2007 12:33 PM
More than chilling!!
Kathryn in California wrote on August 14, 2007 2:20 PM:I'd like to highlight the EFF- the group that originally filed this lawsuit back in January of 2006. This article (and unfortunately many other articles) fails to mention them. Fighting AT&T and the AG gets expensive: readers should know who is doing that fight.
The Electronic Frontier Foundation is a small (under 30 people) donor supported non-profit that works at the intersection of civil-rights and technology. They've been working on voting rights, bloggers' rights (they won Does V Apple Computer), and much more.
The EFF's lawsuit was done before Mark Klein came forward, and I'd speculate that the lawsuit helped Mr. Klein decide to bring his evidence in.
TPM should write about the EFF at some time.
Disclaimer- I know people who work at the EFF, that's a reason I notice if they're not getting credit for their work.
Just an Observer wrote on August 14, 2007 3:30 PM:Spencer Ackerman: "But if the case progresses, it underscores why President Bush sought widespread retroactive liability protection for telecoms that, in his famous phrase earlier this month, 'are alleged to have assisted our Nation following the attacks of September 11, 2001.' Before the program was brought under the Foreign Intelligence Surveillance Act for secret-court review, telecoms simply complied (or, perhaps in some cases, didn't; we don't know) with administrative demands for culling surveillance despite the law."
Actually, a good bet is that the telecoms did not need their arms twisted, but did want their asses covered -- and probably got that already.
There is a provision under existing law, 18 USC 2511(2)(a)(ii)(b), authorizing the attorney general to shield them from a civil suit.
Such a certification -- which is not a compulsory order -- would state "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required ..." The section goes on to say, "No cause of action shall lie in any court against any provider of wire or electronic communication service ... for providing information, facilities, or assistance in accordance with the terms of a ... certification under this chapter."
Did AT&T get such a certification? Maybe so, maybe not. We don't know for sure because DOJ claims that, itself, is a state secret, too secret even to tell a judge.
Discovering the status of such a certification is one of the things the plaintiffs hope to do next in the suit, if it is allowed to proceed.
Hal wrote on August 14, 2007 3:37 PM:Moondancer, Thank you for the link to the Klein interview. It is chilling. It's also a reminder that the surveillance system is run by people, who sometimes talk too freely, and who sometimes have a conscience.
We need about 20 more Kleins to come forward and tell what they know. It would help if some of them were in the NSA, but I don't expect that until Bush leaves the White House.
The lack of public outrage is scary. Have we always been so careless about our privacy?
lysias wrote on August 14, 2007 5:18 PM:There were articles in the press by Sy Hersh and others in the late 90's about how the NSA was an outmoded agency, overwhelmed by new communications technologies.
Maybe they were desperate enough to resort to methods they knew -- or should at least have suspected -- were illegal because they were so desperate to ensure the survival of their agency.
s9 wrote on August 14, 2007 5:35 PM:The good news is that you still don't need a license to use a cryptographic system.
Jim wrote on August 14, 2007 8:28 PM:Only a fool would believe they're not wiretapping everything. This is the Bush Administration, remember. If they're capable of kidnapping an innocent Canadian man from an airport and sending him to Syria for months of torture, they're more than capable of wiretapping you because of your anti-war views and the Al Franken books you've bought. These people believe US law is just a means to an end and the US Constitution is toilet paper.
Kent Mueller wrote on August 14, 2007 11:55 PM:Sigh. Makes one all wistful and nostalgic about the days when the biggest worry was that FISA was a mere rubber stamp. Now it's not even that...
Hopefully the Democrats will return to this issue immediately after the break, it's really dangerous to give this administration sharp tools when they're covered in flop-sweat.
Of course, someone could always start a rumor that the Democrats are even now plotting ways to use the Patriot Act specifically to target AM talk show listeners, so confident are they of having this power come 2008. With crocodile tears they reluctantly went along with this latest, perhaps fatal change in the law, seeing political advantage in this power and figuring that you have to fight Rove with Rove. Another reason the Democrats would do this
is because their alleged frontal assault on behalf of a renewed Fairness Doctrine will clearly fail.
These listeners fall for anything, and they're nowhere near as powerful as they're credited with, representing a bare ten or fifteen percent of radio listenership in any market. They are there to be played with and that's how the right treats them. Get them scared and they'll agree on this issue. There is already a crack with the civil libertarian conservatives, take a tip from the late Karl Rove and sledgehammer a wedge in there.
It might even wake up the vast majority of Americans who don't give a damn about politics and just want to be left alone.
Irony is none of this would be going on if Cheney didn't have that foolish idea of an imperial presidency stuck in his craw. Odds are that's the only reason they didn't want to bother with warrants when they could easily bother with warrants and side-step the whole controversy. Sure makes it look like they've got crimes to cover up and maybe they do.
The sooner this gets to the Supreme Court the better. If they don't uphold the rule of law then apparently anything goes from that point on.
Damn shame.
cwnidog wrote on August 15, 2007 12:53 AM:"State Secret" has such a lovely Iron Curtain ring to it, don't you think?
code word "much" - as in "You don't really think the Congress will do much about this do you?"
owrlakh wrote on August 15, 2007 2:01 AM:It takes us right back to the heyday of World War II, doesn't it? No matter what medium you are using (i.e. e-mail, telephone, telegram, carrier pigeon) always remember:
THE ENEMY IS LISTENING!
It's just that who the enemy is has changed...
The Oracle wrote on August 15, 2007 2:39 AM:I'm certain the Communist Red Chinese have set up similar "citizen spying systems," too.
Just as the resurgent Communists in Russia under Putin have "citizen spying systems" in place to "protect" those in power from anyone getting any "ideas."
All authoritarian dictators and dictator wannabes suffer from the same delusions.
Al in Austex wrote on August 15, 2007 5:43 AM:All of the BushCo atrocities against our way of life will either be made public& addressed at the start of the next election cycle - long about mid September ,or the moderate Republicans that refuse to stand up against the Administration & its crime (IE warrantless surviellance of US citizens for one ) will be removed from office. And I might add all the Democratic Enablers of BushcO will also be voted out of office. If Gonzo is not being impeached by Sept/October timeframe all those politicians not supporting that proceeding will be at serious risk for re-election . Speaker Pelosi -are you listening & hearing & acting on WE the People'S strong desire to protect & defend the constitution - do something girl friend are we may start sending money to Cindy Sheehans campaign /
Anonymous wrote on August 15, 2007 2:01 PM:I can only think that we are at an enormous historical moment for this nation, that Abe Lincoln once described as "conceived in liberty and dedicated to the proposition that all men are created equal."
Most people do not understand or want to think of the implications of habeas corpus or the 1st and 4th Amendment. But this is going to be a huge issue going forward, it cannot be anything else.
People mistakenly describe the current partisan divide in idealogy but is not, it is actually a class system of those who ascribe themselves as authoritarians and those who are not. But in this class world there comes a belief system that 'they' are justified, for greed, for power, for entitlementmm, for advantage.
That said I have the string of hope and faith that as this walks its way through the court, like the Habeas Corpus case, it will find itself failing to win a majority of the votes on the SC. I can even see 4 siding with the authoritarians, but 5 holding to affirm the Constitution. This will engineer a huge moment where the Congress will have to investigate.
As for reading Fein and Nichols, they are correct and we need to commence with this impeachment investigation immediately.