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Lawsuits May Illuminate Methods of Spy Program

By Dan Eggen
Washington Post Staff Writer
Tuesday, August 14, 2007

In 2003, Room 641A of a large telecommunications building in downtown San Francisco was filled with powerful data-mining equipment for a "special job" by the National Security Agency, according to a former AT&T technician. It was fed by fiber-optic cables that siphoned copies of e-mails and other online traffic from one of the largest Internet hubs in the United States, the former employee says in court filings.

What occurred in the room is now at the center of a pivotal legal battle in a federal appeals court over the Bush administration's controversial spying program, including the monitoring that came to be publicly known as the Terrorist Surveillance Program.

Tomorrow, a three-judge panel will hear arguments on whether the case, which may provide the clearest indication yet of how the spying program has worked, can go forward. So far, evidence in the case suggests a massive effort by the NSA to tap into the backbone of the Internet to retrieve millions of e-mails and other communications, which the government could sift and analyze for suspicious patterns or other signs of terrorist activity, according to court records, plaintiffs' attorneys and technology experts.

"The scale of these deployments is . . . vastly in excess of what would be needed for any likely application or any likely combination of applications, other than surveillance," says an affidavit filed by J. Scott Marcus, the senior Internet adviser at the Federal Communications Commission from 2001 to 2005. Marcus analyzed evidence for the plaintiffs in the case.

In the first of two lawsuits before the court, the Electronic Frontier Foundation, a privacy group, alleges in a class action that AT&T collaborated with the NSA to operate a "dragnet" that illegally tracked the domestic and foreign communications of millions of Americans. The second case centers on the disbanded al-Haramain charity and two of its attorneys, who say they were given -- and then forced to return -- a Treasury Department document showing that they had been the focus of NSA surveillance.

Neither AT&T nor the federal government has admitted even the existence of a secret room, and the Justice Department is arguing that the cases should be dismissed because their subject matter is a state secret. The communications company, meanwhile, says it is prevented from properly defending itself because of national security reasons and dismisses the employee who briefly saw the room and worked on supporting equipment as a "line technician who . . . never had access to the 'secret room' he purports to describe."

The lawsuits are among dozens of challenges to the NSA surveillance program that have been consolidated in the San Francisco federal courts. The confrontation comes just days after the Democratic-controlled Congress acceded to the demands of the Bush administration for expanded NSA authority to conduct spying efforts on U.S. soil, effectively approving many of the practices at issue in San Francisco.

Tomorrow's hearing will focus only on whether the two lawsuits should be dismissed on the basis of the government's assertion of a "state secrets privilege." The outcome could determine whether the courts will ever rule on the legality of surveillance conducted by the NSA without judicial oversight between 2001 and January 2007, when the Bush administration first subjected the program to the scrutiny of a special intelligence court.

"If the courts take the position that the state-secrets privilege prevents the case from going forward, I think effectively there'll never be a decision about the legality of the program," said Cindy Cohn, the Electronic Frontier Foundation's legal director. "I think it's tremendously important for that."

President Bush and his aides have confirmed that the NSA, beginning in late 2001, monitored electronic communications between the United States and overseas without warrants in cases in which one of the parties was believed to be affiliated with al-Qaeda. But administration officials have recently acknowledged that the NSA program was broader, and intelligence sources inside and outside the government have described a vast effort to collect and analyze telephone and e-mail communications that were later scrutinized by the government for desired information.

During the congressional debate over the surveillance legislation, Mike McConnell, the director of national intelligence, and other administration officials emphasized that the NSA needed access to major Internet and telephone exchanges to analyze transmitted data and identify and monitor "foreign intelligence" targets.

McConnell said all communications by such targets should be subject to government tapping, even if the individuals are in touch with foreigners inside the United States or with U.S. citizens. The precise methods by which the NSA has picked these communications out of the huge data stream it has tapped remain a highly classified secret.

But the lawsuit against AT&T, filed in early 2006, appears to provide the most detailed description of how the NSA gained access to a portion of this data stream, drawn from the Internet. The plaintiffs have argued in court documents that the practices used in San Francisco probably were used with telephone communications, also.

The allegations by Mark Klein, who worked for AT&T's WorldNet Service, underscore the government's dependence on major telecommunications providers to physically tap optic fibers that carry electronic signals around the globe. Some of the evidence also suggests that the NSA efforts were not limited to overseas e-mail communications and included the collection of purely domestic traffic.

The secret 24-by-48-foot room described by Klein was on the sixth floor of a building at 611 Folsom St. in San Francisco. Klein said the NSA "special project" was well known to the small community of company technicians, and he has provided internal documents to the court describing the "cuts" that were required to split Internet traffic and route a signal to the servers and other equipment in the room.

Klein said that he worked closely with the only two technicians who had been cleared to enter the room and that he entered briefly when he was invited to look at a cable problem. Access to the room was so restricted that, in 2003, employees had to wait days to fix an industrial air conditioner that was leaking water onto the floor below, Klein says.

Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said "splitter cabinets" similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.

Marcus, the former FCC adviser, said in a legal declaration recently unsealed in the case that the operation described by Klein "is neither modest nor limited" and was far more extensive than needed if it was focused only on international communications or on tasks other than surveillance.

"I conclude that AT&T has constructed an extensive -- and expensive -- collection of infrastructure that collectively has all the capability necessary to conduct large-scale covert gathering of [Internet protocol]-based communications information, not only for communications to overseas locations, but for purely domestic communications as well," said Marcus, a veteran computer network executive who worked at GTE, Genuity and other companies before joining the FCC.

James X. Dempsey, policy director at the Center for Democracy and Technology, said the evidence gleaned from the AT&T case appears to confirm that "there is a massive surveillance capability built into the network" by the federal government. But, Dempsey added, "the mere fact that the capability has been built and utilized still does not answer the fundamental question -- has it been exercised under constitutional parameters? That, in a way, is what these cases are trying to get to."

The prospects for the plaintiffs are unclear. In July, an appeals court in Cincinnati threw out a similar challenge to the NSA wiretapping program by the American Civil Liberties Union, finding that the plaintiffs did not have standing to sue because they could not prove they had been subjected to surveillance.

Two senior Justice Department officials, who participated in a background briefing for reporters yesterday, said the administration believes it is on solid legal footing in arguing that national security mandates that the two cases cannot be pursued. "If it's not possible to litigate, then it should be dismissed," one official said.

Another recent ruling from a three-judge panel in Washington, however, rejected the Justice Department's arguments in a similar but more limited case, finding that an "all-or-nothing approach" had not been adopted by the Supreme Court or lower courts. San Francisco's 9th Circuit is well-known as the nation's most liberal appellate bench, and the three judges drawn for tomorrow's hearings were all appointed by Democratic presidents.

Most legal observers say that a final resolution is likely to come from the Supreme Court. "What the 9th Circuit says won't be the final word," said Orin S. Kerr, a George Washington University law professor who specializes in national security issues. "There's going to be a long path before this is resolved."

Staff writer Ellen Nakashima contributed to this report.

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