The Secret Room -- The Bush Administration's Surveillance Game
Editor's Note: Congress is considering three bills that would delineate the White House's domestic spy powers. But rather than curtail those powers, each bill would effectively protect massive surveillance programs already eavesdropping on Americans. Jeffrey Klein, a founding editor of Mother Jones, this summer received a Loeb, journalism's top award for business reporting. Paolo Pontoniere is a New America Media European commentator.
SAN FRANCISCO--Although it may appear as if Congress is about to put restraints on the Bush administration's wiretapping programs, the three "reform bills" now up for a vote all paint a deceptive picture of the massive domestic surveillance programs that the government has up and running. Because several ongoing invasion-of-privacy lawsuits could expose the extent of the illegal wiretapping, the administration is seeking via these bills to shunt the lawsuits into a secret court, where they will die.
Earlier this year Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) accused President Bush and the National Security Agency (NSA) of breaking the law by authorizing wiretaps without seeking a judicial warrant. Vice President Cheney quickly went to the Hill to work out a compromise with Sen. Specter. The so-called Specter-Cheney bill would give the president the option -- not the requirement -- to submit his electronic surveillance programs for review by the special secret court created by FISA, the 1978 Foreign Intelligence Surveillance Act.
A contrasting bill sponsored by Sen. Dianne Feinstein (D-Calif.) affirms that FISA court approval for eavesdropping is the "exclusive" means for authorizing wiretaps in domestic terrorism and espionage cases. And a third proposal by Sen. Mike DeWine (R-Ohio) requires only that the administration notify Congress when it conducts wiretaps without a warrant.
All of the proposed bills give the Bush administration more wiretapping flexibility through exceptions, disclosure delays and retroactive warrants. Sen. Specter's bill, which the Justice Department has endorsed, also transfers to a FISA court the 29 ongoing invasion-of-privacy cases filed against telecommunications companies, including AT&T, MCI and Sprint, for cooperating with the Bush administration on warrantless eavesdropping.
How many Americans' phone calls, faxes and e-mails are already being spied upon? Both political parties act as if the number is in the low thousands -- in other words, not us. But the truth is: not even the minority leader of the Senate Intelligence Committee, Senator Jay Rockefeller (D- W.V.), has the slightest idea. "Even though Senator Rockefeller could be briefed on a classified basis," says Steven Aftergood, head of the Federation of American Scientists' Government Accountability Project, "he hasn't been given answers to the most basic questions. Senator Rockefeller doesn't know how many people have been subjected to electronic surveillance, he doesn't know what the results of any program have been, he doesn't know what errors have been committed."
A clue to the size of the government's ongoing surveillance programs can be gleaned from the lawsuits that the administration wants transferred to the secret FISA court. In May of 2006, acting on behalf of phone customers, the Electronic Frontier Foundation (EFF) filed a class action against AT&T for colluding with the government by conducting systematic searches without any court order. The lawsuit is now awaiting a 9th Circuit Court of Appeals' ruling, expected in October. A lower court tossed out AT&T's and the government's requests for dismissal.
The lawsuit is based upon a sworn statement by Mark Klein, an AT&T technician for 22 years who oversaw AT&T's WorldNet Internet facilities in San Francisco. According to Klein, AT&T provided NSA agents access to all voice calls, while diverting all the data (e-mail, Web surfing, credit card transactions) crossing the Internet through data-mining equipment installed in a series of secret rooms in San Francisco San Diego, San Jose, Los Angeles, Seattle and other cities.
San Francisco's "secret room," according to Klein, is Room 641A at 611 Folsom St., home of a large AT&T building. High-speed fiber-optic circuits come in on the eighth floor and run down to the seventh, where they connect to routers for AT&T's WorldNet service. These fiber-optic circuits are part of what Klein defines as the vital "Common Backbone" among different carriers.
Klein reports that in order to snoop on these circuits, a special cabinet had to be installed, as well as a secret room admitting only people with NSA clearance. "My job required me to connect new circuits to the "splitter" cabinet and get them up and running," Klein wrote in a public statement provided to the press in April of this year.
"I also saw design documents dated Jan. 13, 2004 and Jan. 24, 2003, which instructed technicians on connecting some of the already in-service circuits to the 'splitter' cabinet, which diverts some of the light signal to the secret room," Klein wrote. "The circuits listed were the Peering Links, which connect WorldNet with other networks and hence the whole country, as well as the rest of the world."
Why couldn't the eavesdropping be done remotely in a less conspicuous way? Fiber-optic circuits do not "leak" their signals the way copper wires do. In order to snoop, someone has to physically cut into the fiber and divert a portion of the light signal to a "secret room" via the splitter. The San Francisco "secret room" is numbered "3," suggesting that fiber optic backbones are being sliced into elsewhere. Currently, AT&T controls about one-third of America's Internet bandwidth.
According to Kevin Bankstone, lead counsel in EFF's lawsuit against AT&T, "The administration calls what it's doing a limited program. But they're already...acquiring the conversations of millions of ordinary Americans without any meaningful oversight."
The interception technology Mark Klein observed fits like a glove onto the Total Information Awareness (TIA) program that Congress killed in 2003, mainly because of the radioactive publicity attracted by its head, Admiral John Poindexter of Iran-Contragate infamy. Yet according to The National Journal, Congress passed a classified exception that preserved funding for TIA's component technologies if they were transferred to other government agencies.
Bankstone claims that the attempt to funnel into the FISA court all of the invasion-of-privacy cases against the telecom giants is "forum shopping of the worst sort. The administration wants to litigate in the greatest secrecy before a court which has the least experience with any sort of litigation." Any FISA court decision itself could be kept secret.
And of course, since the Bush administration has ignored the FISA court and Congress in the past, there's no reason to expect it won't do so again, no matter which reform bills are passed. The White House's theory of its uncheckable power can be seen in its Justice Department's brief "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." A typical sentence: "The Executive Branch uniformly has construed the Commander in Chief and foreign affairs powers to grant the President authority that is beyond the ability of Congress to regulate."
If the White House believes it has some authority beyond any regulation, and if Congress is already so complicit, why is the White House trying to ram through changes to the country's domestic surveillance laws? Karl Rove has repeatedly claimed that raising national security issues early and often will improve Republican chances in the upcoming mid-term elections. Also, more lawsuits may eventually appear before courts emboldened by U.S. District Judge Anna Diggs Taylor's recent decision against the administration's warrantless wiretapping program, which read, "the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution."
"If the Founders believed that leaders would be inherently good," says Steven Aftergood of the Federation of American Scientists, "they wouldn't have set up such an elaborate system of checks and balances. It would be shocking if we let our unique system of government be dismantled in the name of defending it against some external foe."
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