Today I interviewed Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, alleging that AT&T violated multiple federal laws by providing (without warrants) unfettered access for the Bush administration to all telephone and Internet data concerning its customers. The Bush administration intervened in that lawsuit to argue that the "state secrets" doctrine compelled dismissal of the lawsuit, but the presiding judge, Bush 41-appointee Vaughn Walker, last year rejected that argument and ordered the case to proceed (Oral Argument on the administration's appeal of that ruling was heard by the 9th Circuit earlier this year).
The EFF/AT&T lawsuit -- based in part on the testimony and documentation of Mark Klein, a former AT&T employee -- will entail an investigation into the extent to which AT&T and other telecoms enabled the Bush administration to spy illegally on their customers. As of now, these telecom lawsuits are the best (arguably, the only real) hope for obtaining a judicial ruling as to whether these surveillance programs were illegal. Precisely for these reasons, the Bush administration is demanding "telecom amnesty" -- to bring a halt to EFF's lawsuit and thus ensure that no investigation of its spying activities on Americans ever occurs, and that no ruling is ever obtained as to whether it broke the law.
I found this interview extremely illuminating, and it reveals just how much misinformation is being disseminated by amnesty advocates. I will post the entire podcast and transcript when it is available, but wanted to post some key excerpts now:
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GG: The lawsuit you originally brought was against only AT&T and not against the Bush administration or any government officials. Is that correct?
CC: Yes. We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.
So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.
As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.
So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
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Regarding the 9th Circuit appeal and what is at stake in these cases:
GG: If you were a Bush administration lawyer coming out of that Oral Argument, you would be far from confident that the 9th Circuit is going to dismiss the case?
CC: I think that's a fair characterization.
GG: And so, as we sit here now, with the Bush administration demanding amnesty for telecoms -- including AT&T and the other telecom defendants in these various lawsuits - there is a very real prospect, as of this moment, that the case you brought against these telecoms will go forward, and will entail an investigation into what these telecoms have been doing vis-a-vis surveillance of Americans -- is that true?
CC: I think that's true. . . . The courts will be able to look pretty deeply into what the phone companies have been doing. It may not be the case that the rest of us will know all of it. But what we will know at the end -- and what I think is critically important -- is whether it was legal or not.
GG: There will be a judicial ruling, assuming your case goes forward, as to whether or not the activities the telecoms engaged in, in concert with the Bush administration, actually broke the law?
CC: Yes - and that I think is tremendously important even if we don't end up knowing every nook and cranny of what the Government has been doing.
The FISA law really makes it illegal for the phone companies to give this information to the Government, and what the Government does with it afterwards isn't really relevant to our claim.
We have evidence of an NSA-controlled room in the Folsom Street AT&T facilities in San Francisco. We have evidence that AT&T diverted copies of everyone's Internet traffic into that room. And we know that there's very sophisticated equipment in that room that is capable of doing real-time analysis of the Internet traffic that is getting routed into there.
For most of our legal claims, that's enough to win, and we're done.
GG: Let's talk about those allegations. Your lawsuit, if it proceeded, would necesarily require an investigaiton into those allegations -- namely, into whether there was a secret room built, whether AT&T was providing unfettered access to the NSA, whether they were turning over this data. You would have to prove those allegations in order to prevail, right?
CC: Yes. . . . in that regard we already have AT&T internal documents that lay out the schematics of how this is happening and AT&T has authenticated these documents. They filed a motion with Judge Walker saying that those documents are their trade secrets and to say that, they had to say they were true. . . . The evidence we already presented and the fact that AT&T authenticated them takes us, if not all the way there, pretty darn close.
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The impact of amnesty on these investigations:
GG: So, if Congress were to enact a law providing amnesty to telecoms -- something like the Bush administration is demanding, whereby the telecoms would receive retroactive amnesty -- that would essentially put a halt to your lawsuit?
CC: We would certainly argue that it didn't, but it's fair to say that it would put a pretty large hurdle in front of us for going forward. . . .
GG: But you would expect AT&T's lawyers and the telecom industry to argue that the amnesty they got from Congress does in fact bar those claims as well?
CC: Yes. Their goal is plainly to get rid of these litigations full stop. They don't want the courts to ever rule on whether this is legal or not. That's their goal. . . .
It's certainly the goal of the administration and the phone companies to ensure that there's never a decision about what's been going on is legal or not. The telecom cases are the last, best hope.
GG: In all of these cases that might result in an adjudication as to whether the surveillance programs were illegal, the Bush administration has been actively invovled in trying to block these cases from proceeding at all?
CC: That's right - they made the same "states secrets" argument as they made in our case in all these other cases as well.
GG: And having lost the "state secrets" argument in your case, and also in the ACLU case originally, they're now attempting to put a stop to these cases through the amnesty law that they're seeking?
CC: I think that's right. They're afraid. I think it's fair to say that they're worried they're not going to win with the rules of the game as they were set up at the time they started spying on everyone. They're running to Congress to try to change the rules of the game going forward, and trying to cover up what's happened in the past. And the question is - - is Congress going to go for this?
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The passivity of Congress:
GG: The claims by Mark Klein about what AT&T was doing - do you know, has he ever testified before any Congressional hearings or spoken with any Congressional Committee as part of any investigations that they've done into these claims?
CC: I know he hasn't ever been asked to testify in front of Congress. I know he would be willing to testify, I know he'd be very eager to tell his story to Congress.
GG: Well that's why I'm asking. These are pretty extraordinary claims that he's making, and yet -- not only during the time that the Republicans were in control of the Congress, but even for the 9 months that Democrats were in control -- there have been no formal Congressional hearings, Committee investigations, in which they asked him to come and testify about what he knows. Is that right?
CC: I think that's right. And I think that as we've been talking to members of Congress about the immunity provision, as the amnesty provision has been moving to Congress, it's shocking to me that they don't know what Mr. Klein has told a federal judge.
It's been on Frontline, and it was on a whole bunch of things -- you've been talking about it -- but there's a sense that members of Congress don't understand the kind of wholesale dragnet surveillance that Mr. Klein's evidence demonstrates . . . It's undisputed, this evidence. They have never said that Mr. Klein is lying or that the documents are phony.
To the contrary, AT&T itself said they were all true and were trying to argue that they were their trade secrets and we should have to give them all back. It's undisputed evidence and it is surprising that Congressional members still don't know about it and haven't asked Mr. Klein to come tell them himself.
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Claims of telecoms' "good faith":
GG: One of the arguments that the telecom industry is making, and that advocates of telecom immunity or amnesty are making, is that these telecoms acted in good faith when they did what they did, and so it's unfair to punish these companies -- even if they technically broke the law -- because they were acting in good faith, acting as what the Washington Post Editorial Page described as good "patriotic corporate citizens" trying to protect the country. I have two questions about that:
(1) is it true that under the law, if they can prove they acted in good faith, then at least for the statutory claims, there won't be any liability?; and,
(2) aren't those claims, those arguments, that they're making now [about their supposed "good faith"] ones that they made before Judge Walker, that he rejected, when he refused to dismiss the case against them?
CC: Yes and yes. To answer your first question: the FISA law already has very broad immunities for the telecoms, and if it was the case that they were acting in good faith with an honest belief that what they were being asked to do was legal, then they would already have immunity, and they don't need an additional immunity from Congress for that.
And it's also the case that they made all these arguments to Judge Walker and Judge Walker's decision on this addresses those arguments very directly -- he said no reasonable phone company in the position of AT&T could have thought that what they were being asked to do was legal. It is not the case that this phone company could have believed that the wholesale surveillance of millions of its customers for five years, six years and counting, could be legal under the law.
Remember, these phone companies are very sophisticated about these FISA laws and the other laws that explain how and when they can cooperate with law enforcement. These aren't some rouges. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone.
But even if they didn't, I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"
The answer to that has to be "no." I don't think you even need a law degree to figure that one out.
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The motives for the telecom lawsuits:
GG: John Boehner, the House Minority Leader, was on Fox News on Sunday arguing for telecom immunity, and this is one of the things he said in explaining why he believed in amnesty: "I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies."
Is that an accurate description of your lawsuit and your organization?
CC: No, we are not plaintiff's attorneys. . . . He's welcome to come and visit our offices and if he still thinks that we're rich plaintiffs' attorneys after he's visited our little tiny Mission Street offices, then I have a bridge to sell him. We're a small, struggling non-profit with a very tiny budget - and we're doing this because we're committed to protecting people's privacy in the digital age.
GG: I don't know the salaries of EFF lawyers and I'm not asking that, but I assume it's true that there are all kinds of private sector opportunities and large corporate law firms in San Francisco where lawyers working in those places are making a lot more money, and if EFF lawyers were motivated by the desire for profit -- as Mr. Bohener dishonestly suggested -- there are a lot of other jobs that you could get that would pay a lot more money.
CC: Oh yeah, absolutely. And in fact, our lawyers are just the opposite. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big paycuts to join us, because they wanted to do personally fulfilling work and feel like they were making the world a better place.
What I tell young lawyers who come to me and say: "I really want to work for EFF - you have such great lawyers," I say: "take your current paycheck, rip it in three pieces, take any third, and that's about what you'll get working for EFF." The lawyers who work for EFF are making some of the biggest contributions to this organization, because they are making far less than they could on the open market in exchange for being able to work on things they believe in every day.