Since 2001, the Bush administration and America’s leading telecommunications carriers have been blatantly violating the law and the privacy of millions of Americans. Working together, they have engaged in a comprehensive and insidious warrantless dragnet surveillance program that ignores the careful legal safeguards set forth by Congress. Under this program, the carriers intercept and disclose to the government the telephone and Internet communications of millions of their customers, along with detailed records about customers’ communications.
Since January 2006, the Electronic Frontier Foundation has been litigating Hepting vs. AT&T, a case arising from AT&T’s participation in the illegal surveillance. The case is brought on behalf of all of AT&T’s customers to stop the ongoing conduct and to hold the company responsible in order to compensate the millions of ordinary Americans who have been affected. This should also serve to discourage the telecom giant from agreeing to such illegal schemes in the future.
The litigation is bolstered by detailed and uncontested evidence. A former AT&T employee has presented his own eyewitness testimony along with over a hundred pages of authenticated AT&T schematic diagrams and tables detailing how AT&T diverted communications to the National Security Agency. No fewer than 19 members of Congress have publicly confirmed, based upon briefings from the executive branch, that telecom companies turned over to the NSA huge databases of information about telephone and other communications. The director of national intelligence has confirmed that the administration turned to the private sector for assistance. And carriers themselves have confirmed that the administration approached them to assist in these surveillance efforts.
The administration’s response to this case has been twofold. On the one hand, it claims that the question of whether it is actually engaging in wholesale warrantless surveillance is so secret that no court can ever determine whether it is legal. On the other hand, it emphatically insists that any warrantless surveillance is legal, despite the clear mandates set forth in numerous well-established laws. Under such expansive theories of presidential power, the executive branch and its telecommunications collaborators are free to eavesdrop on every American with impunity, blatantly violating the law, as long as they first invoke the mantra of national security.
On the first question, the only true test of whether the surveillance program is lawful must come from the courts, and this means that the currently pending litigation must continue if our nation is ever to find that answer. On the second, constitutional scholars, prominent attorneys, legislators and even former members of the Bush administration have rightfully rejected the legal arguments that claim, in essence, that the president can violate the law at will and keep the courts from dispensing justice.
The administration’s attempt to stop the litigation based on the secrecy argument failed before the U.S. District Court, and the administration’s appeal is pending before the 9th Circuit Court of Appeals. Unnamed sources have informed reporters that the government and the telecommunications carriers are deeply concerned that the 9th Circuit will allow the case to proceed, and now an army of telecom lobbyists and administration officials is trying to stop the litigation by persuading Congress to grant full immunity to the carriers.
The Hepting case, along with companion cases pending in District Court, represent the country’s best hope to test the administration’s extreme view of executive power in the crucible of judicial scrutiny, and to allow the courts to determine whether we are truly a nation governed by law or by people.
It is imperative that our society gets answers to crucial questions raised by the warrantless surveillance program on the separation of powers and the scope of executive authority. The courts must not be pulled from the fight, whether by the state secret privilege or immunity legislation. It would be a travesty to deny the opportunity for justice to those whose privacy has perished under a presidential program, and to prevent the courts from determining whether the Constitution supports the president’s claim of unbridled executive power.
KURT OPSAHL is a senior staff attorney with the Electronic Frontier Foundation (www.eff.org), which is counsel to the plaintiffs in Hepting vs. AT&T. He wrote this article for the Mercury News.
