Today’s Must ReadWhat’s happening in Room 641A of 611 Folsom Street in San Francisco remains one of the most closely-held secrets in the U.S. government. According to a former AT&T employee who assisted two technicians cleared to work in the telecommunications complex on Folsom Street, 641A served as a vacuum cleaner for phone calls and e-mails of terrorism suspects, routing them to the National Security Agency.
The claims made by the ex-employee, Mark Klein, are the basis for a class-action lawsuit against AT&T and affiliated telecoms for illegally harvesting information from U.S. citizens. Tomorrow, reports The Washington Post, judges from the Ninth Circuit Court of Appeals will hear arguments as to whether the class action should go forward — or whether the government is right that 641A is a state secret, and can’t be litigated without compromising national security. The answer probably won’t be determinative — both sides have vowed to appeal up to the Supreme Court — but if the case is shut down, a public window on the Bush administration’s warrantless surveillance activities, recently blessed by a Congressional overhaul of the Foreign Intelligence Surveillance Act, will slam shut.
As many have suspected since the 2005 disclosure of the warrantless surveillance program, what Klein has described at Room 641A is a capacity that far exceeds the technical ability to focus on mere international communication. Essentially, it’s part of a West Coast-based constellation of communication hubs of fiber optic cables that the government instructed telecoms to physically tap.
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.
[J. Scott] 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.
The Justice Department contends that the whole enterprise is a state secret, and that both the class action and a related suit — filed by an al-Qaeda-affiliated Islamic charity that says it has proof of being wiretapped — need to be accordingly dismissed. Klein, according to the DOJ, was a mere “line technician who . . . never had access to the ‘secret room’ he purports to describe.” (Needless to say, it’s not confirming whether 641A is anything like what Klein says it is.) Challenging the standing of the plaintiffs to sue is important: judges dismissed a similar case brought by the ACLU last year on the grounds that no one involved in the suit could prove he or she had been surveilled — the occurrence of which, of course, is itself secret.
But if the case progresses, it underscores why President Bush sought widespread retroactive liability protection for telecoms that, in his famous phrase earlier this month, “are alleged to have assisted our Nation following the attacks of September 11, 2001.” Before the program was brought under the Foreign Intelligence Surveillance Act for secret-court review, telecoms simply complied (or, perhaps in some cases, didn’t; we don’t know) with administrative demands for culling surveillance despite the law. Should the Ninth Circuit panel reject the government’s arguments and allow the case to proceed, even those who can’t prove they’ve been surveilled might have grounds to sue telecom companies, a nightmare scenario to a Bush administration that fears a chilling effect on compliance with the National Security Agency.
The case is set to go before the three-judge panel of the Ninth Circuit tomorrow at 2 pm West Coast time. Stay tuned.
Update: This post originally misreported that the panel will decide the two cases tomorrow, when in fact it will hear arguments on them and subsequently rule. I regret the error, and thank reader KB for pointing it out.
