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AT&T whistleblower claims to document illegal NSA surveillance

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
2 min read

Evidence provided by a former AT&T technician proves that the telecommunications company secretly and unlawfully opened its networks to government eavesdroppers, the Electronic Frontier Foundation said Thursday.

Alert readers may remember that EFF sued AT&T in January, alleging it illegally cooperated with the National Security Agency's secret eavesdropping program. Then, in an odd twist last week, the Bush administration objected to EFF including some internal AT&T documents in court (the Feds claimed they might be classified).

Now EFF seems to have cleared that up and has filed them in court, although they're still under seal.

EFF claims that it has a sworn statement by Mark Klein, a retired AT&T telecommunications technician -- and several internal AT&T documents -- that show a "dragnet surveillance" has been put into place to facilitate the NSA's controversial surveillance scheme. (Here's our survey of telecom companies regarding NSA cooperation.)

Alas, we likely won't know details until the judge decides to release them.

Even if the documents prove everything that EFF claims, it's not a slam dunk for the group.

The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets.

In 1998, the 9th Circuit Court of Appeals elaborated on the state secret privilege in a case where former workers at the Air Force's classified Groom Lake, Nev., facility alleged hazardous waste violations. When requested by the workers' lawyers to turn over information, the Air Force refused.

The 9th Circuit upheld a summary judgment on behalf of the Air Force, saying that once the state secrets "privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute" and the case will generally be dismissed.

That "absolute privilege" case is still good law and is binding on the judge that will hear EFF's case.