Feds appeal loss in NSA wiretap case

Bush administration asks the 9th Circuit to halt a lawsuit that accuses AT&T of illegally opening its network to the NSA.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
4 min read
The Bush administration has asked a federal appeals court to halt a lawsuit that accuses AT&T of illegally opening its communication networks to surveillance by the National Security Agency.

Permitting the Electronic Frontier Foundation's lawsuit to proceed would endanger national security and possibly expose classified information, the U.S. Department of Justice said in a legal brief filed on Monday.

The administration also nominated Laurence Silberman, a federal appeals court judge in Washington, D.C., to serve as an expert in this case. A former deputy attorney general, Silberman was appointed by President Reagan and serves on the secretive Foreign Intelligence Surveillance Court of Review.

The brief is a response to a July 20 ruling by U.S. District Judge Vaughn Walker in San Francisco, who surprised lawsuit watchers by saying there are "sufficient" grounds to let the lawsuit continue.

"Because of the public disclosures by the government and AT&T, the court cannot conclude that merely maintaining this action creates a 'reasonable danger' of harming national security," Walker wrote.

In a 24-page brief filed on Monday, the Justice Department asked the 9th Circuit Court of Appeals to review the case because of the "serious risk" of disclosing sensitive information. "The district court has, in a highly unusual action, overruled the government's assertion of the state secrets privilege, and has thereby placed at risk particularly sensitive national security interests," the brief states.

In its class action lawsuit filed in January, the EFF alleged that AT&T violated federal wiretapping laws by cooperating with the NSA. AT&T has declined to comment, although its attorneys have hinted that legal authorization exists. (In general, federal wiretapping law prohibits electronic surveillance "except as authorized by statute" or by the attorney general.) The EFF is a nonprofit that advocates for privacy and free speech on the Internet.

After EFF's lawsuit was filed, reports of a secret room in an AT&T building in San Francisco surfaced and have become central to the nonprofit group's litigation.

AT&T switching<br /> center in downtown San Francisco" border="0" style="border:1px solid #000;" />
Credit: Declan McCullagh/CNET News.com
A room in this AT&T switching
center in downtown San Francisco
is alleged to be a place where the
National Security Agency taps Internet
and telephone communications.

A former AT&T employee, Mark Klein, has released documents alleging the company spliced its fiber optic cables and ran a duplicate set of cables to Room 641A at its 611 Folsom St. building. Redacted documents seen by CNET News.com show that AT&T has tried to offer benign reasons for the existence of such a room.

"State secrets" claim
The Bush administration has tried to derail the EFF's lawsuit by invoking the "state secrets" privilege and has submitted statements from Keith Alexander, the NSA's director, and John Negroponte, the director of national intelligence. The state secrets privilege generally permits the executive branch to dismiss lawsuits that could endanger the nation if allowed to proceed.

Those arguments worked before a federal judge in Chicago. On July 25, U.S. District Court Judge Matthew Kennelly granted the Justice Department's request to throw out another suit related to the NSA program brought by the American Civil Liberties Union.

But Walker, the judge in San Francisco, saw things differently in the EFF suit and ruled that "even the state secrets privilege has its limits." Although the state secrets privilege might require that the case be halted at some point, he said, it should not be tossed out of courts before it could even properly begin.

In his opinion (click here for PDF), Walker also said he was contemplating appointing an expert with security clearance to assist him in "determining whether disclosing particular evidence" would endanger national security.

The Justice Department opposes the idea (click here for PDF) but said that if an expert was necessary, Silberman is its choice.

For its part, the EFF nominated as an expert: Louis Fisher, who works at the Library of Congress; Michael Jacobs, a former NSA employee who is now a vice president at consulting firm SRA International; and Washington attorney Kenneth Bass, a court-appointed expert in a case dealing with classified documents.

The EFF's brief (click here for PDF), which argued against the government's request to halt proceedings while the appeal continues, said the selection of a court-appointed expert was appropriate.

Proposals to rewrite federal surveillance laws could, however, imperil the case if they are eventually adopted. Last week, a U.S. Senate committee heard testimony from the heads of the CIA and NSA who urged the adoption of a bill to expand the 1978 wiretapping law called the Foreign Intelligence Surveillance Act. It would expand the president's ability to conduct broad telephone and Internet surveillance with limited judicial oversight.

Also on Monday, Walker approved a request from CNET Networks (publisher of News.com) and the California First Amendment Coalition to file a friend-of-the-court brief. In May, CNET and other groups had opposed a request by AT&T to hold part of a hearing behind closed doors. Walker rejected the request.