Government May Help Bells Defend Against Wiretap Suits

Carl Bialik from WSJ writes "As lawsuits mount against phone companies from plaintiffs who allege their call records were handed over to the National Security Agency illegally, the companies' defense may get help from the U.S. government, the Wall Street Journal reports. From the article: 'The plaintiffs, who accuse Bell phone companies of privacy violations and are seeking billions of dollars in damages, would need to delve into the depths of the NSA's surveillance program to make their cases. But the government considers such information top secret, and legal experts expect the Bush administration to assert the "state secrets" privilege in the 20 or more lawsuits filed by privacy advocates in recent weeks. If judges accept the claim, as has been the case in nearly every instance in which it has been asserted since the early 1950s, the suits will dissolve.'"

Comments

No wiretaps involved here

[steveg]

There are wiretaps involved with the NSA's FISA violations, but there has been no accusation of domestic wiretapping in the suits against the Bells.

The Bell suits all have to do with turning over call records, not wiretapping. Wiretapping is *live* monitoring of the contents of telephone calls, and the legal bar to performing a wiretap is considerably higher than "trap and trace" or "pen register" monitoring. The massive turnover of call records is equivalent to trap and trace and pen register, and according to the PATRIOT Act, all the authorities have to do to get an order authorizing these latter types of surveillance to to atest that such monitoring is "necessary to an ongoing investigation."

So when the NSA claims that those requests for records was legal, they're probably right. The question to be asked, of course, is *should* it be legal, and that's a whole different question. Congress had the chance to fix that, but they passed the renewed PATRIOT Act, so I guess that means that *they* thought it was OK.

And there may be actual domestic wiretapping going on, but we don't know that since if there is, that story hasn't yet broken.

Re:He Could Lie

[Darby]

This is my $0.02 about why I do not subscribe to the belief that Bush intentionally mislead Congress and the American public. If blame is to be placed on anyone for the war, it should be on the NSA, CIA and Executive/Congressional branches of the government for crippling our ability to gather reliable intelligence in the field.

You make some very good, well presented points, but you left several major critical facts out of your analysis.

We know for a fact that one of if not the most important goals of this administration since before they even got into office was starting a war with Iraq. We know for a fact that they knew the American people wouldn't go for it. We know for a fact that they knew that it would require a "Pearl Harbor" level event to convince the American people to back the invasion.
We know for a fact that once said event happened that they immediately began agitating to attack Iraq even though there is no evidence of their involvement. We know for a fact that they intentionally misled people in an attempt to make them think Iraq was responsible for 9/11..

If you are not aware of all of these facts, then feel free to read it in their own words.

Add in the fact that the CIA specifically told them not to run with the known bad information that they had and they intentionally ignored it in order to make out Saddam to be a big threat and it's obvious that the situation is not even anywhere near as unclear as your argument would indicate.

Re:State Secrets Privilege was abused from the sta

[molo]

You can know for sure. Here are the declassified documents:

Declassified case appendix which contains the allegedly sensitive documents, via Federation of American Scientists: http://www.fas.org/sgp/othergov/reynoldspetapp.pdf

Also that kind of under-cover spy information has not been what the SSP has been used for. Read the Wikipedia articles about Siebel Edmonds for an example of the modern abuses.

-molo

Re:Proposed Strategy

[demachina]

I found the Criminal Information Protection Act which codifies classified information in a trial, but as I expected it is completely written in the context of the government being the plaintiff when they need to use classified information to convict a defendant of espionage, terrorism or leaking. You see the government will divulge classified information to nail you but they wont allow you to use classified information to nail them.

Having researched it I agree that the government will try to just use the state-secret privilege so Hayden wont even make it to the stand. If by some miracle the judge doesn't cave to it and Hayden does have to testify then I assume either CIPA will have to come in to play and be bent to this novel case, or Hayden will just refuse to answer any questions that would divulge classified information because it would in fact incriminate him in the process if he did it in a public court.

The Wikipedia article on the states-secret privilege is quite interesting and probably more interesting than the WSJ article.

Its not even a law, its just a precedent that was established during the McCarthy era where the Air Force used it, apparently fraudulently, to cover up the fact a B-29 crash was due to poor maintenance of the air plane, and was basicly negligence on the part of the Air Force.

"In United States v. Reynolds (1953), the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court which they had deemed a threat to national security. In 2000, the accident reports in question were declassified and released, and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case."

Just goes to show you that once you let your government establish an illegal and unconstitutional precedent, during times of war or paranoia, to screw you, they can continue to abuse it forever. The Bush administration has been successfully using the fact that Abraham Lincoln suspended habeas corpus during the civil war to justify denying American citizens basic due process today, and that FDR spied on American cables in World War II to justify spying on Americans now indefinitely.

Another interesting invocation of the "state-secret privilege" was in 2005 in a patent suit brought against none other than AT&T. Apparently a company called Crater Corp thinks AT&T is violating its patents for "WetMate underwater fiber optic coupling devices" which I'm guessing is probably being used by the U.S. to tap and evesdrop on fiber optic cables on the ocean floor. I would assume it must be used for tapping otherwise it wouldn't be classified. Now the U.S. has used underwater tapping technology against the Soviet Union for a long time, both on copper and fiber optic cables, but I bet you the NSA in concert with the U.S. Navy is underwater tapping any fiber optic cable they can't eavesdrop on land with the help of U.S. phone companies. It would be an interesting case to tack in to this case against AT&T.

The "state-secret privilege" was also use to defeat a case brought by Maher Arar, the Canadian detained by the U.S. at a New York Airport on his way home to Canada. You probably remember reading about it here on slashdot. He was shipped by the U.S. to Syria where he was abused for a year or so before Canada finally managed to free him. His crime as best I remember was he signed as a reference on a lease for a friend of a family member