August 24, 2007
Role of Telecom Firms in Wiretaps Is
Confirmed
By ERIC LICHTBLAU
WASHINGTON, Aug. 23 — The Bush administration has confirmed for the first time that
American telecommunications companies played a crucial role in the National Security
Agency’s domestic eavesdropping program after asserting for more than a year that any role
played by them was a “state secret.”
The acknowledgment was in an unusual interview that Mike McConnell, the director of national
intelligence, gave last week to The El Paso Times in which he disclosed details on classified
intelligence issues that the administration has long insisted would harm national security if
discussed publicly.
Mr. McConnell made the remarks apparently in an effort to bolster support for the broadened
wiretapping authority that Congress approved this month, even as Democrats are threatening to
rework the legislation because they say it gives the executive branch too much power. It is vital,
he said, for Congress to give retroactive legal immunity to the companies that assisted in the
program to help prevent them from facing bankruptcy because of lawsuits over it.
“Under the president’s program, the terrorist surveillance program, the private sector had assisted
us, because if you’re going to get access, you’ve got to have a partner,” Mr. McConnell said in
the interview, a transcript of which was posted by The El Paso Times on Wednesday.
AT&T and several other major carriers are being sued over their reported role in the program,
which permitted eavesdropping without warrants on the international communications of
Americans suspected of terrorism ties. The administration has sought to shut down the lawsuits
by invoking the state-secrets privilege, refusing even to confirm whether the companies helped
conduct the wiretaps.
Cindy Cohn, legal director for the Electronic Frontier Foundation, which is heading up the
lawsuit against AT&T, said her group might ask the appeals court to consider Mr. McConnell’s
comments in deciding whether the state-secrets argument should be thrown out.
“They’ve really undermined their own case,” Ms. Cohn said.
Mr. McConnell said those suits were a driving force in the administration’s efforts to include in
this month’s wiretapping legislation immunity for telecommunications partners. “If you play out
the suits at the value they’re claimed,” he said, “it would bankrupt these companies.”
Congress agreed to give immunity to telecommunications partners in the measure , but refused to
make it retroactive.
Mr. McConnell, who took over as the country’s top intelligence official in February, warned that
the public discussion generated by the Congressional debate over the wiretapping bill threatened
national security because it would alert terrorists to American surveillance methods.
“Now part of this is a classified world,” he said in the interview. “The fact we’re doing it this
way means that some Americans are going to die.”.
Asked whether he was saying the news media coverage and the public debate in Congress meant
that “some Americans are going to die,” he replied: “That’s what I mean. Because we have made
it so public.”
Mr. McConnell, though, put new information on the public record in the interview, on Aug. 14
while in Texas for a border conference.
Mr. McConnell said, for instance, that the number of people inside the United States who were
wiretapped through court-approved warrants totaled “100 or less” but on the “foreign side, it’s in
the thousands.” The Foreign Intelligence Surveillance Court, which approves national security
wiretaps, told Congress it approved 2,181 eavesdropping warrants last year. The court and the
administration have not been willing to break out how many Americans were in those orders.
Mr. McConnell did not make clear the time frame for his estimate, nor was it clear whether he
was referring to the security agency’s program of eavesdropping without warrants, which was
brought under the oversight of the intelligence court in January. Officials in his office refused to
clarify what he meant.
Mr. McConnell also offered the administration’s first public discussion about a classified series
of rulings by the intelligence court that he said had restricted the agency’s ability to collect
foreign intelligence.
He said one judge this year gave broad approval for the agency’s eavesdropping program. But
another judge, he said, ruled in the spring that the administration would have to obtain a warrant
for any “foreign to foreign” communications that passed through an American
telecommunications center.
The administration obtained a stay of that ruling until May 31, he disclosed, but after that date he
intelligence officials had “significantly less capability” to track foreign communications. The
ruling sent the administration “in the wrong direction,” he added.
The American Civil Liberties Union, which has petitioned the intelligence court to make public
its secret wiretapping rulings, expressed frustration on Thursday with the timing of Mr.
McConnell’s comments.
“If this ostensibly sensitive information can be released now, why could it not be released two
months ago, when the public and Congress desperately needed it?” asked Jameel Jaffer, director
of the group’s national security project.
Steven Aftergood, director of the Project on Government Secrecy for the Federation of American
Scientists, said the interview “was quite striking because he was disclosing more detail than has
appeared anywhere in the public domain.”
“If we’re to believe that Americans will die from discussing these things,” Mr. Aftergood said,
“then he is complicit in that. It’s an unseemly argument. He’s basically saying that democracy is
going to kill Americans.”
_________________
Telecom Firms Helped With Government's Warrantless
Wiretaps
By Ellen Nakashima
Washington Post Staff Writer
Friday, August 24, 2007; D03
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.
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.