Class action lawsuit charges President, NSA with illegal surveillance

There's been no dispute that the National Security Agency cooperated with AT&T in a surveillance operation from its West Coast office. But its legal basis has been a Presidential order, and a new lawsuit questions whether that is enough.

In a lawsuit that would most likely convene after President Bush has left office next year, a number of AT&T phone and Internet customers have sued the President personally, along with the National Security Agency and members of the President's intelligence community since 2001. Citing evidence brought to light last year by former AT&T network technician Mark Klein, the suit alleges that AT&T was ordered by the President to cooperate with the NSA in illegal warrantless surveillance operations, in what has often been described as "the secret room on Folsom Street" in San Francisco.

The lawsuit was filed yesterday in US District Court for the Northern District of California. The Electronic Frontier Foundation is providing the legal resources for the case, and AT&T is not named as a defendant.

"The contents of communications to which Plaintiffs and class members were a party, and dialing, routing, addressing, and/or signaling information pertaining to those communications, were and are acquired by Defendants in cooperation with AT&T by using the nationwide network of Surveillance Configurations, and/or by other means," the lawsuit reads. "Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' and class members' communications contents and non-content information is done without judicial, statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and in excess of statutory and constitutional authority."

The complaint goes into fairly explicit detail about the layout and engineering of the Folsom Street facility, coinciding in large part with Klein's November 2007 testimony before the Senate Judiciary Committee. Among Klein's counsel were some of the EFF attorneys backing this latest lawsuit, including legal director Cindy Cohn.

The suit does not explicitly specify whether any communications on the part of the plaintiffs were specifically known to have been intercepted by the NSA, though it assumes that plaintiffs' communications were just as likely to be intercepted as any other AT&T subscriber's, and it enables other parties to sign onto the class action.

The President's order enabling such surveillance programs to take place, dates back to October 2001, though Mr. Bush has renewed that order on schedule every 45 days since then. During the intervening period between the tenure of Attorneys-General John Ashcroft and Alberto Gonzales -- on March 9, 2004, the complaint notes -- Acting Attorney-General James Comey advised Mr. Bush that it was his opinion that the surveillance program had no legal basis. Two days later, the suit states, the President renewed the order for another 45-day term anyway, on the basis of having been approved by then-White House counsel Gonzales, prior to his appointment as Ashcroft's successor.

This is the second class-action lawsuit on this matter to be backed by the EFF; the first was filed in 2006, but remains stalled in a legal quagmire over whether AT&T should receive immunity.

In a statement released yesterday, the EFF's Cohn said, "Demanding personal accountability from President Bush, Vice President Cheney, and others responsible for the NSA's dragnet surveillance of ordinary Americans' communications is the best way to guarantee that such blatantly illegal spying will not be authorized in the future. Our lawsuit today should sound a clear warning to future occupants of the White House: If you break the law and violate Americans' privacy, there will be consequences."

In one of his most recent statements on the matter last June, in support of legislation that would enable intelligence reform while enabling immunity for AT&T and other telcos, President Bush said, "The enemy who attacked us on September the 11th is determined to strike this country again. It's vital that our intelligence community has the ability to learn who the terrorists are talking to, what they're saying, and what they are planning."