By Dan Eggen and Ellen Nakashima
Washington Post Staff Writers
Sunday, March 2, 2008
President Bush said last week that telecommunications companies that helped government wiretapping efforts need protection from "class-action plaintiff attorneys" who see a "financial gravy train" ahead. Democrats and privacy groups responded by accusing the Bush administration of trying to shut down the lawsuits to hide evidence of illegal acts.
But in the bitter Washington dispute over whether to give the companies legal immunity, there is one thing on which both sides agree: If the lawsuits go forward, sensitive details about the scope and methods of the Bush administration's surveillance efforts could be divulged for the first time.
Nearly 40 lawsuits, consolidated into five groups, are pending before a San Francisco judge. The various plaintiffs, a mix of nonprofit civil liberties advocates and private attorneys, are seeking to prove that the Bush administration engaged in illegal massive surveillance of Americans' e-mails and phone calls after the Sept. 11, 2001, terrorist attacks, and to show that major phone companies illegally aided the surveillance, including the disclosure of customers' call records.
If the cases are allowed to proceed, plaintiffs' attorneys say, the courts could review, in secret if necessary, any government authorizations for the surveillance. The process might also force the disclosure of government memos, contracts and other documents to a judge, outlining the legal reasoning behind the warrantless wiretapping program.
Perhaps most important, disclosures in the lawsuits could clarify the scope of the government's surveillance and establish whether, as the plaintiffs allege, it involved the massive interception of purely domestic communications with the help of the nation's largest providers: AT&T, Cingular Wireless, BellSouth, Sprint and MCI/Verizon. (Verizon Communications bought MCI in 2006.)
"I think the administration would be very loath for folks to realize that ordinary people were being surveilled," said Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, which filed the lead lawsuit, against AT&T.
A prime goal in the litigation is to find out who the decision makers were, said Don Migliori, a partner with Motley Rice in Providence, R.I., a plaintiffs' attorney who is working on the lawsuit against Verizon. The plaintiffs intend to request not just government documents but also e-mails, including who contacted whom and when -- the very sort of "meta-data" that the administration is accused of mining as part of its surveillance program.
Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?
Answers to those questions, he said, might reveal that "everybody in the country" has had their phone calls "combed through, and lots of people will be outraged."
The uncertain, high-stakes nature of the litigation -- in which the plaintiffs are seeking not only disclosure to a judge of internal documents that might prove their allegations, but also a court ruling that the surveillance and collection of call records harmed millions of people -- helps explain why the administration is so adamant in supporting a Senate-passed bill aimed at strangling the lawsuits before they can proceed, according to government officials and privacy advocates.
"The whole point of [the] litigation is discovery of information," said a Justice Department official, who spoke on the condition of anonymity because of the sensitivity of the topic. "Obviously there is information here that could be damaging to national security if it was released, and of course that is a major concern."
Although the plaintiffs say that some of the documents at issue can be reviewed in secret by a judge, Bush raised concern about public disclosures at a Thursday news conference, when he said that "allowing the lawsuits to proceed could aid our enemies" and "give al-Qaeda and others a road map as to how to avoid the surveillance."
The dispute involves the Protect America Act, a temporary law that broadened the government's powers to spy on some Americans without warrants but expired on Feb. 16. The administration backs the Senate bill, which would renew the law and add immunity for the telecommunications firms; House Democratic leaders have balked, leading to two weeks of partisan squabbling.
The administration asserts that without immunity, companies may refuse to cooperate with vital surveillance efforts in the future for fear of being sued. But the administration's preferred bill is also backward-looking: It provides legal protections for company acts after the September 2001 attacks.
Whether such protections are actually needed is unclear. The companies and the government say they are, because the companies were acting in good faith to comply with national security-related requests but cannot defend themselves in open court, whereas the plaintiffs assert that the companies already have immunity for any actions pursuant to a valid government order.
All discovery has been blocked so far by the administration's argument, still awaiting court resolution, that the suits are barred because they involve state secrets. What tantalizing clues about the surveillance have emerged so far have come from affidavits entered into the record by the plaintiffs.
If the AT&T case is allowed to proceed, for example, the plaintiffs will ask a judge to consider documents provided by a former AT&T technician, Mark Klein, that suggest a massive effort by the National Security Agency to tap into the backbone of the Internet to retrieve millions of e-mails and other exclusively domestic communications.
The government, in a brief before the U.S. Court of Appeals for the 9th Circuit in San Francisco, has denied the existence of any "dragnet" surveillance program. In the cases against the telecommunications firms, Justice Department attorneys have argued that merely to confirm or deny any "intelligence" relationship with AT&T or any company "could reasonably be expected to cause exceptionally grave damage to the national security."
Though the carriers have argued that they are barred from defending themselves against the allegations because of the government's invocation of the state-secrets privilege, at least one carrier, Verizon, has stated in regulatory filings that the cases against it are without merit.
There are also three separate surveillance-related lawsuits against the Bush administration itself that would not be stopped by either the House or Senate legislation. Though all three question the legality of the surveillance, these cases might be stopped by the courts because government officials enjoy a qualified immunity protection that the phone companies do not.
The companies themselves, including AT&T, Verizon and others, have said little publicly about the debate, citing concerns over the ongoing litigation and state secrets. However, the companies have brought senior executives into town to meet with the few lawmakers who have been briefed in detail on the government's surveillance programs.
Last fall, former attorney general John D. Ashcroft signed a letter to top members of the Senate Judiciary Committee urging retroactive immunity for the companies. His consulting firm, the Ashcroft Group, was on retainer to AT&T at the time. An Ashcroft spokeswoman declined comment.
Staff writer Jeffrey H. Birnbaum and staff researcher Julie Tate contributed to this report.