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Telecom Firms Helped With
Government's Warrantless Wiretaps
Ellen Nakashima
Washington
Post
Friday Aug 24, 2007
The Bush administration acknowledged for the first time that
telecommunications companies assisted the government's warrantless
surveillance program and were being sued as a result, an admission
some legal experts say could complicate the government's bid to
halt numerous lawsuits challenging the program's legality.
"[U]nder the president's program, the terrorist surveillance
program, the private sector had assisted us," Director of
National Intelligence Mike McConnell said in an interview with
the El Paso Times published Wednesday.
His statement could help plaintiffs in dozens of lawsuits against
the telecom companies, which allege that the companies participated
in a wiretapping program that violated Americans' privacy rights,
former Justice Department officials said. Warrantless surveillance
began shortly after the Sept. 11, 2001, terrorist attacks and
was placed under supervision of a special court in January.
An appeals court in San Francisco is weighing the government's
argument that these cases should be thrown out on the grounds
that the subject matter is a "state secret" and that
its disclosure would jeopardize national security.
(Article continues below)
The government has repeatedly asserted that any relationship
between the telecommunications firms and the National Security
Agency's spy program is classified. The firms' alleged cooperation
and other details of the program, government lawyers have argued,
are so sensitive that they cannot be disclosed. The government
has argued the lawsuits against the telecom firms must be dismissed.
"[D]isclosure of the information covered by this [state
secrets] privilege assertion reasonably could be expected to cause
exceptionally grave damage to the national security of the United
States," McConnell said in a sworn affidavit filed in a federal
court in San Francisco in May.
David Kris, a former Justice Department official in Republican
and Democratic administrations, said McConnell's admission makes
it difficult to argue that the phone companies' cooperation with
the government is a state secret. "It's going to be tough
to continue to call it 'alleged' when he's just admitted it,"
Kris said.
Ross Feinstein, a spokesman for McConnell, declined to comment,
as did spokesmen for AT&T and Verizon.
A challenge for the plaintiffs is to make a case using only public
facts, said Kris, co-author of a new book, "National Security
Investigations and Prosecutions." McConnell has just added
to "the list of publicly available facts that are no longer
state secrets," increasing the plaintiffs' chances that their
cases can proceed, Kris said.
McConnell's statement "does serious damage to the government's
state secrets claims that are at the heart of its defenses,"
said Greg Nojeim, senior counsel at the Center for Democracy and
Technology and an expert on state secrets privilege.
In his interview, McConnell also said that open discussion on
matters such as these "means that some Americans are going
to die."
But Bruce Fein, an associate deputy attorney general in the Reagan
administration, said that McConnell's disclosure shows that "an
important element of a program can be discussed publicly and openly
without endangering the nation."
Fein noted that in the 1970s, President Richard Nixon argued
national security would be harmed if the Church Committee permitted
hearings on government surveillance of civilians. "These
Cassandran cries that the earth is going to fall every time you
have a discussion simply are not borne out by the facts,"
he said.
McConnell also said telecom firms should have immunity from lawsuits.
"If you play out the suits at the value they're claimed,
it would bankrupt these companies," he said.
The Bush administration has urged Congress to pass a law granting
immunity to the telecom companies.
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