On Tuesday, January 29, at 9:30 a.m, members of the U.S. House of Representatives Judiciary Committee will hold a public hearing on reform of the state secrets privilege, which the Executive Branch has often used in recent years to hinder judicial inquiry into controversial anti-terrorism policies such as the CIA's rendition program and the NSA's warrantless wiretapping program.

Senior Staff Attorney Kevin Bankston of the Electronic Frontier Foundation (EFF) will appear at Tuesday's hearing to explain how the Administration has abused the privilege by seeking dismissal of all lawsuits concerning the NSA program -- including EFF's lawsuit against AT&T for assisting with the NSA -- based on blanket assertions of secrecy. Bankston will urge the committee to pass legislation to reform the privilege and clear the way for such lawsuits to proceed in court fairly and securely. Such reform is the most appropriate response to phone companies like AT&T that are lobbying Congress for retroactive amnesty, based on the claim that the government's assertion of the state secrets privilege prevents them from defending themselves.

Despite the ongoing controversy surrounding the Bush administration's claims that executive power alone allows it to engage in warrantless domestic surveillance that public officials and legal experts across the political spectrum have said violates the Foreign Intelligence Surveillance Act (FISA) and the U.S. Constitution, only one question on the issue has been asked of any presidential candidate of either party during the numerous debates over the past year.

One of the issues surrounding the debate over Bush's warrantless surveillance concerns the telecommunication firms that assisted the NSA program. On May 11, 2006, USA Today reported that the NSA "has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth." Following additional reporting on the issue, several organizations filed lawsuits against the telecommunications companies alleging violations of the U.S. Constitution, FISA, and other state and federal laws. In a class-action lawsuit against AT&T, the Electronic Frontier Foundation alleged that the company is "collaborating with the NSA in a massive warrantless surveillance program that illegally tracks the domestic and foreign communications and communication records of millions of Americans."

Amid public outcry, in 2003, Congress defunded the Bush Administration's Total Information Awareness (TIA) project, a massive Orwellian technology-driven surveillance and data mining initiative. Now, it is attempting to pass through the FISA Amendments Act of 2007 (S. 2248), a bill that would effectively give legal standing and retroactive legal immunity to a major component of this project.

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According to the Electronic Frontier Foundation (EFF), a civil liberties organization based in San Francisco that has filed a class action suit against AT&T, the company had installed a fiber-optic splitter at its San Francisco office that copies all e-mails and other Internet traffic passing through the system and deposits these copies into a separate government computer network. The EFF alleges that the secret NSA rooms, to which the copies are sent, contain "powerful computer equipment connected to separate networks. This equipment is designed to analyze communications at high speed, and can be programmed to review and select out the contents and traffic patterns of communications according to user-defined rules" (emphasis added).

Recent revelations about former Qwest chief executive Joe Nacchio's classified-information defense, which went unheard during his insider-trading trial, are feeding the furor over the government's warrantless-wiretapping program.
Nacchio alleges the National Security Agency asked Qwest to participate in a program the phone company thought was illegal more than six months before the Sept. 11, 2001, terrorist attacks, according to court documents unsealed at the request of The Denver Post.

Nacchio's claims could affect President Bush's controversial efforts to grant legal immunity to large telecommunications companies such as AT&T, which has been sued in connection with the surveillance program.

"The Nacchio materials suggesting that the NSA had sought telco cooperation even before 9/11 undermines the primary argument for letting the phone companies off the hook, which is the claim that they were simply acting in good faith to help the president fight the terrorists after 9/11," said Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, a civil-liberties group.

"The fact that these materials suggest that cooperation with the program was tied to the award of certain government contracts also contradicts their (phone companies') claims that they were simply acting in good faith to help fight the terrorists when it appears that they may have been motivated by financial concerns instead," Bankston said.

Today I interviewed Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, alleging that AT&T violated multiple federal laws by providing (without warrants) unfettered access for the Bush administration to all telephone and Internet data concerning its customers...
I found this interview extremely illuminating, and it reveals just how much misinformation is being disseminated by amnesty advocates.

I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"

The answer to that has to be "no." I don't think you even need a law degree to figure that one out.

WASHINGTON, Nov. 16 — A federal appeals court said today that secrecy laws forced it to exclude critical evidence about the National Security Agency’s domestic eavesdropping program from being used by an Islamic charity in a lawsuit even though the mere existence of the program could no longer be considered a “state secret.”

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A lawyer for the group leading that part of the lawsuit, the Electronic Frontier Foundation, said in an interview that he was heartened by the appeals court’s clear rejection of the government’s claim everything involved in the eavesdropping program should be considered a state secret. That could bode well for the remaining piece of the case, said the lawyer, Kevin Bankston.

The Federal Communications Commission will not pursue an investigation of telecoms cooperation with the National Security Agencys wiretapping activities. According to Director of National Intelligence Mike McConnell, in Washington, such a probe would "pose an unnecessary risk of damage to national security."

In a related action involving the controversy, the Electric Frontier Foundation, based in San Francisco, announced on Oct. 5 it had hired two veteran Washington lobbyists to try to block amnesty for telecoms collaborating with the NSAs warrantless spying activities. The EFF is lead counsel in Hepting v. AT&T, one of many lawsuits aiming to hold telecommunications companies accountable for allegedly violating their customers privacy rights.

On Sept. 27, the EFF filed a lawsuit against the Department of Justice, demanding any records of a telecom industry lobbying campaign to block lawsuits over their compliance with illegal electronic surveillance.

"The White House is publicly calling for immunity for the telecoms, while a recent Newsweek article detailed a secretive lobbying campaign to block the lawsuits," Marcia Hofmann, an EFF attorney, said in a statement. "If there are back room deals going on at the Department of Justice, then Americans need to know about them now, before Congress passes any law that gets the telecom companies off the hook."

Tuesday’s congressional hearing about Yahoo turning over information about two dissidents to the Chinese government got me all riled up — and not at Yahoo.

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But Congress should think hard about how it’s undermining civil rights here at home before getting all holier-than-thou on U.S. companies trying to figure out how to do business in China, a place where the government’s power can be both murky and threatening.

“I wish Congress would put the practices domestically under the same magnifying glass,” said Danny O’Brien, international outreach coordinator at Electronic Frontier Foundation, a San Francisco group that has advocated for privacy rights around the globe. “This is an inconsistent position.”

The Senate approved a major revision of the 30-year-old law regulating the government's electronic surveillance program Wednesday, ending a debate that threatened to freeze intelligence operations.

The bill, which President Bush promised to sign, is designed to end at least 40 lawsuits against telecommunication companies that have aided the government.

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Opponents said the bill codifies an unconstitutional program. The American Civil Liberties Union and the Electronic Frontier Foundation vowed a court challenge.

"This program broke the law, and this president broke the law," said Sen. Russ Feingold, D-Wis., a leading opponent. Senators will regret they passed the law if they learn more about the program, he said.

The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. We speak with Mark Klein, a technician with AT&T for over twenty-two years. In 2006 Klein leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables.

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Mark Klein is also a witness in a lawsuit filed by the Electronic Frontier Foundation, which alleges AT&T illegally gave the National Security Agency access to its networks. Mark Klein joins us now from San Francisco, California.