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White House, Judges Grapple Over State Secrets in AT&T Spy Suit

By Keith Regan E-Commerce Times ECT News Network
Aug 16, 2007 10:39 AM PT

The Bush administration is urging the U.S. Court of Appeals for the 9th District in San Francisco to dismiss a lawsuit filed by consumers and privacy advocates against AT&T for its role in a program that enables eavesdropping on phone calls and e-mails, saying allowing the case to proceed would put intelligence efforts at risk.

White House, Judges Grapple Over State Secrets in AT&T Spy Suit

Permitting the case -- which the Electronic Frontier Foundation (EFF) brought as a class action on behalf of AT&T customers -- to go to trial would "reveal the sources, methods and operational details" of covert intelligence agencies such as the National Security Agency (NSA), Deputy Solicitor General Gregory Garre said during a hearing Wednesday.

The appeals court held the hearing on motions by the government to dismiss two lawsuits -- the AT&T case being one of them -- filed in connection with the NSA spying program.

The EFF said the argument, which the government has used throughout the proceedings, falls short, and amounts to efforts to avoid responsibility for using a private company such as AT&T to help the government spy on its own citizens.

"The courts are well-equipped to protect state secrets" even while allowing the trial to take place to help determine if the program was illegal, said EFF Legal Director Cindy Cohn.

Out of Balance?

The appeals court took the matter under consideration, and is expected to rule in a matter of weeks. The three judges on the panel peppered both sides in the case with questions, aiming many of their inquiries at Garre. For instance, they asked about how a court should determine if something is a state secret and requires protection on security grounds.

"Who decides what's a state secret?" Judge Harry Pregerson asked. "Are we just a rubber stamp? We're just supposed to take the word of the executive?"

In response, Garre argued the court should give the "utmost deference" to the executive branch if such a claim is made.

The main case is known as "Hepting v. AT&T," and is a class action brought on behalf of AT&T customers who say their right to privacy was violated when AT&T took part in a NSA-sponsored program to channel Internet traffic -- including VoIP phone calls and e-mail messages -- through government systems that enable eavesdropping.

Spying on Millions?

The EFF has said it has a sworn affidavit from a former AT&T employee who was aware of a room within AT&T's regional operations facility that only NSA employees had access to. The group says such surveillance requires a search warrant under federal law.

The second suit involves a direct complaint alleging illegal wiretapping. The Al-Haramain Islamic Foundation claims federal agents violated the law when they tapped into phone calls between the charity and its outside attorneys.

The Bush administration is making the same argument in that case -- that any trial would make public spying techniques that could weaken efforts to protect the U.S. against future terrorist attacks.

"The government is hoping to avoid accountability for spying on millions of AT&T customers," EFF Staff Attorney Kevin Bankston told the E-Commerce Times.

A vigorous hearing in the courts would be part of the "system of checks and balances that is supposed to thwart abuses of power," he added.

"The White House is trying to wiggle out of those checks by taking the courts out of the picture," Bankston said.

Taking Sides

Lawmakers last month granted the president additional power under the Protect America Act of 2007 to conduct surveillance of international communications involving U.S. citizens without a warrant.

In passing that extension and expansion of the Foreign Intelligence Surveillance Act (FISA), Congress backed up the president's sweeping surveillance efforts, said Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC).

"It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing," Rotenberg told the E-Commerce Times.

Still, Congress will likely debate the issue again as the extension expires in about six months and could add in some means of providing oversight to prevent abuses. Meanwhile, the courts are another key battleground in the privacy front.

There have been numerous court cases launched since the NSA program was first revealed last year. Last month, a federal judge said five states -- Missouri, Maine, New Jersey, Connecticut and Vermont -- could continue with investigations into AT&T's involvement with the surveillance program. In fact, a U.S. District Court judge has already ruled that the Hepting case could continue despite government claims of the need for secrecy.


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