AT& T Plaintiffs Cite McConnell Remarks

By Ellen Nakashima
Washington Post Staff Writer
Saturday, September 1, 2007

Plaintiffs suing AT&T in connection with the government's warrantless surveillance program this week filed a motion asking a federal appeals court in San Francisco to consider as evidence the recent admission by the government's top intelligence official that telecommunications companies aided the program.

Director of National Intelligence Mike McConnell told the El Paso Times in an interview published Aug. 22 that "under the . . . terrorist surveillance program, the private sector had assisted us," and as a result, the companies "were being sued." He asserted that such suits, which include the AT&T case, "would bankrupt these companies."

"Taken in context, it is clear that [McConnell] is referencing the defendant telecommunications companies in this litigation" as well as dozens of other cases pending in federal court, wrote attorneys for Electronic Frontier Foundation, which filed the class-action lawsuit last year on behalf of AT&T customers in California who claim that they were wiretapped.

The government has repeatedly asserted that to confirm or deny that any relationship between the telecom companies and the National Security Agency surveillance program would reveal state secrets that could harm national security. It has argued that the case should be dismissed to prevent exposing such secrets.

McConnell's remarks buttress the plaintiffs' allegation that AT&T unlawfully assisted the government in a surveillance program, said Kurt Opsahl, an attorney with the Electronic Frontier Foundation. Those actions violated Americans' constitutional and privacy rights, and therefore the case should be allowed to proceed, he said.

In a reply filed this week, government lawyers asserted that McConnell's statements did not detract from its state-secrets argument. "In particular, the statements do not confirm plaintiffs' allegations of a telephone records program or a content surveillance dragnet," they said. McConnell "did not confirm any intelligence-gathering relationship between the government and any specific company and did not point to any specific company among those that have been sued," they said.

The appeals court is considering the government's argument that the case should be dismissed to prevent exposing state secrets damaging to national security.

The Bush administration has asked Congress to grant the phone companies immunity from lawsuits arising from the program.

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