Legal loophole emerges in NSA spy program

[coderman]

this administration is particularly skilled at legal exploit.  pehaps
all that practice bending tax law over a barrel was merely warm up.
;)

remember that Ashcroft was indeed signing approvals (in fact, they
pestered him at the hospital while he was still recovering from
surgery) and the deputy attorney general was also involved (i don't
remember if he provided authorization when Ashcroft was
incapacitated/reluctant or not...)

http://news.com.com/Legal+loophole+emerges+in+NSA+spy+program/2100-1028_3-6073600.html

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By Declan McCullagh
Story last modified Wed May 17 20:08:38 PDT 2006

SAN FRANCISCO--An AT&T attorney indicated in federal court on
Wednesday that the Bush administration may have provided legal
authorization for the telecommunications company to open its network
to the National Security Agency.

Federal law may "authorize and in some cases require
telecommunications companies to furnish information" to the executive
branch, said Bradford Berenson, who was associate White House counsel
when President Bush authorized the NSA surveillance program in late
2001 and is now a partner at the Sidley Austin law firm in Washington,
D.C.
Bradford Berenson Bradford Berenson

Far from being complicit in an illegal spying scheme, Berenson said,
"AT&T is essentially an innocent bystander."

AT&T may be referring to an obscure section of federal law, 18 U.S.C.
2511, which permits a telecommunications company to provide
"information" and "facilities" to the federal government as long as
the attorney general authorizes it. The authorization must come in the
form of "certification in writing by...the Attorney General of the
United States that no warrant or court order is required by law."

Information that is not yet public "would be exculpatory and would
show AT&T's conduct in the best possible light," Berenson said. But he
did not acknowledge any details about the company's alleged
participation in the NSA's surveillance program, which has ignited an
ongoing debate on Capitol Hill and led to this class-action lawsuit
being filed in January by the Electronic Frontier Foundation.

Some legal experts say that AT&T may be off the hook if former
Attorney General John Ashcroft, who was in office at the time the NSA
program began, provided a letter of certification. (Other officials,
including the deputy attorney general and state attorneys general,
also are authorized to write these letters.)

"If the certification exists, AT&T is in pretty good shape," said Marc
Rotenberg, executive director of the Electronic Privacy Information
Center and co-author of a book on information privacy law.

EFF's lawsuit alleges that the telecommunications company let the NSA
engage in wholesale monitoring of Americans' communications in
violation of privacy laws. Confidential documents that EFF unearthed
during the course of the suit--kept under seal and still not
public--allege that AT&T gave the government full access to its
networks in a way that let millions of e-mail messages, Web browsing
sessions and phone calls be intercepted.

AT&T's ace in the hole?
If a letter of certification exists, AT&T could have an ace in the
hole. A second section of federal law says that a "good faith"
reliance on a letter of certification "is a complete defense to any
civil or criminal" lawsuit.

During the hearing Wednesday before U.S. District Judge Vaughn Walker,
Deputy Assistant Attorney General Carl Nichols also hinted that such a
letter exists. Nichols said that there are undisclosed "facts that
AT&T might want to present in its defense."

""" <inset>
AT&T's legal defense?

An obscure section of federal law says that AT&T may have legally
participated in the NSA surveillance program -- if, that is, it
received a "certification" from the attorney general.

That section says: "Notwithstanding any other law, providers of wire
or electronic communication service... are authorized to provide
information, facilities, or technical assistance to persons authorized
by law to intercept wire, oral, or electronic communications... if
such provider... has been provided with... a certification in writing
by... the Attorney General of the United States that no warrant or
court order is required by law, that all statutory requirements have
been met, and that the specified assistance is required, setting forth
the period of time during which the provision... is authorized... No
provider of wire or electronic communication... shall disclose the
existence of any interception or surveillance or the device used to
accomplish the interception or surveillance..."
</inset>"""

But, Nichols added, those facts relate to classified information that
are "state secrets" and would jeopardize national security if they
were disclosed. A hearing on the Bush administration's request to
dismiss the case on national security grounds has been scheduled for
June 23.

For its part, AT&T has remained silent about the extent of its alleged
participation in the NSA surveillance scheme, which initially was
thought to apply only to international calls but now may encompass
records of domestic phone calls and more. Verizon and BellSouth, for
instance, took steps to distance themselves from a USA Today report
that said their call databases were opened to the NSA. But AT&T
wouldn't comment.

Marc Bien, a spokesman for AT&T, told CNET News.com on Wednesday:
"Without commenting on or confirming the existence of the program, we
can say that when the government asks for our help in protecting
national security, and the request is within the law, we will provide
that assistance."

The next tussle in this lawsuit is likely to center on how far the
"state secrets" concept can extend. Is AT&T able to divulge the text
of any certification letter, without saying exactly what information
it turned over as a result? Must the mere existence of a certification
letter remain secret?

Injecting additional complexity is 18 U.S.C. 2511's prohibition on
disclosure. It says that telecommunication companies may not "disclose
the existence of any interception or surveillance or the device used
to accomplish the interception or surveillance"--except if required by
law. Unlawful disclosures are subject to fines.

EFF claims that the existence of a letter of certification should not
be classified. Cindy Cohn, an EFF attorney, told the judge on
Wednesday that it is "not a state secret because the statute has a
whole process" governing it.

"If you have a certification, let's see it," EFF attorney Lee Tien
said in an interview after the hearing.

For his part, Berenson, the former attorney for President Bush who's
now representing AT&T, complained about allegations that his client is
violating the law. It's unfortunate that EFF "chose to use words like
'criminal tendency' and 'crimes,'" Berenson said. AT&T "is one of the
great companies of the United States. To attach those kinds of labels
is reckless at best."

Berenson's biography says he worked for Bush on the "war on terrorism"
and the USA Patriot Act. Since leaving the White House, Berenson has
written letters to Congress (click here for PDF) calling for renewal
of the Patriot Act and has co-founded a group called Citizens for the
Common Defence that advocates a "robust" view of presidential
authority. It filed, for instance, an amicus brief (click here for
PDF) before the Supreme Court in the Hamdi case arguing that a U.S.
citizen could be detained indefinitely without trial because of the
war on terror.
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