Domestic spying lawsuit targets Bush, Cheney, NSA

Nick Juliano

Privacy advocates are trying to shut down the US government's "shadow network of surveillance devices" used to spy on its citizens with a lawsuit aimed at President Bush, Vice President Dick Cheney, the National Security Agency and dozens of current and former government officials.

Plaintiffs who had been pursuing a suit against AT&T have shifted their focus to government officials to circumvent Congress's grant of immunity to telecommunications companies that participated in Bush's warrantless wiretapping program. A class action lawsuit was filed Thursday by the Electronic Frontier Foundation, which is continuing to pursue its case against AT&T.

"Today we've opened a second front in our battle to stop the NSA's illegal surveillance," EFF attorney Kevin Bankston told reporters during a conference call Thursday.

Based on news reports and information it obtained from former AT&T employee Mark Kline, EFF alleges a massive surveillance apparatus has been trained on Americans to vacuum up information on virtually every telephone call, e-mail and Internet search to feed a massive database maintained by the NSA.
8. The core component of the Program is Defendants’ nationwide network of sophisticated communications surveillance devices, attached to the key facilities of telecommunications companies such as AT&T that carry Americans’ Internet and telephone communications.

9. Using this shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of the phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation’s communications networks.
Information on the lawsuit and a link to the 55-page filing is available on EFF's Web site.

The lawsuit outlines 17 counts, including alleged violations of the First Amendment, Fourth Amendment, Foreign Intelligence Surveillance Act and other laws. Additional defendants targeted by the suit include former White House counsel and Attorney General Alberto Gonzales, former NSA director and current CIA director Michael Hayden, Cheney chief of staff David Addington, Attorney General Michael Mukasey, former Attorney General John Ashcroft, former Director of National Intelligence John Negroponte and up to 100 unnamed government or private sector officials who participated in the surveillance.

Bankston said the lawsuit's aim is to "obtain personal accountability from the architects" of the warrantless surveillance and to say to future government officials, "If you break the law and violate people's privacy, there will be consequences."

Bush's decision to ignore FISA's warrant requirements and have the NSA turn its surveillance apparatus on Americans after 9/11 was first revealed by the New York Times in December 2005, leading the president to acknowledge what he called the "Terrorist Surveillance Program" a few months later. The TSP, as Bush described it, authorized eavesdropping on phone calls in which at least one party was located overseas.

Bankston said the illegal surveillance "absolutely" goes beyond that program, citing admissions from government officials that the TSP was just part of the government's post-9/11 surveillance expansion along with subsequent reports in other newspapers outlining government efforts to gather financial records and online transactions to construct data-mining databases.

Whether the latest lawsuit will succeed in ending the NSA's domestic surveillance programs remains to be seen.

Previous efforts to learn more about or achieve judicial overview of the ultra secret programs have been scuttled through a combination of state secrets and executive privilege claims, and EFF expects to face those same types of arguments this time around.

Congress also has been complicit. When it adopted several amendments to FISA earlier this summer, the Democratic-led Congress gave in to Bush's demands that the updated spy law provide immunity for participating telecoms like AT&T.

Bankston said EFF is arguing that the immunity grant itself was unconstitutional and has not given up its original case, Hepting v. AT&T, but the group is pursuing the separate case against the government officials to avoid getting bogged down with the fight over immunity.

The main goal, he said, "is to dismantle the NSA's nationwide spying network."