August 15, 2007 4:40 PM PDT
Appeals court may let NSA lawsuits proceed
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The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not discuss those contents in a courtroom with reporters and the public in the audience.
Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired AT&T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an AT&T switching facility in downtown San Francisco on Folsom Street.
But administration officials have never been willing to deny a dragnet program in a signed affidavit made under penalty of perjury. That might derail the lawsuit against AT&T for now, but on the other hand, it could carry threat of criminal prosecution if the affidavit turned out to be a lie.
"What would be wrong with a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant," Hawkins asked.
In December 2005, after The New York Times reported the existence of the NSA eavesdropping program, the president replied by saying: "I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."
McKeown suggested this wording for an affidavit: "Without admitting or denying that the government has a relationship with AT&T, I, Mr. or Mrs. So-and-So from the executive branch under oath, essentially affirm what President Bush said." The judge also said that because the government denies the dragnet program "and says they do not do any such surveillance without a warrant and there is no such program," the affidavit should be no problem.
Garre replied that such an affidavit is unnecessary because the president has already made a public statement.
"At least the public (would have) the benefit of a sworn statement from a public official," Hawkins responded.
For its part, AT&T is asking that the lawsuit against it be dismissed in part because it claims to be unable to defend itself properly without veering into terrain that the Bush administration has staked out as state secrets.
The Foreign Intelligence Surveillance Act includes criminal penalties of up to five years in prison for government officials who engage "electronic surveillance under color of law except as authorized by statute." It also includes civil penalties, including punitive damages and attorney's fees, that someone who has been illegally "subjected to an electronic surveillance" can win in court.
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