Hint: It's Not About Fighting Terrorism

For over a year and a half, readers here have been treated to details of the CATCH-ALL program that are only now being uncovered by our intrepid news media.

A California appeals court will examine two cases this week that could impact the federal government's high-tech surveillance of Americans. The Wednesday hearings come after a new law that broadens intelligence officials' eavesdropping power.

The Bush administration wants the 9th U.S. Circuit Court of Appeals to dismiss the lawsuits, contending that they could jeopardize highly sensitive "state secrets." Because the privilege prevents litigants from obtaining classified data, the cases lack standing, the Justice Department argued.

The Supreme Court ruled in 1953 that the executive branch could bar evidence from court if it was deemed a national security threat, senior agency officials told reporters Monday. When the material in question is scrubbed from a case, the complaint may or may not fall apart, they said.

"We're not arguing that this means the judges should look at classified material secretly and rule in favor of the government on the merits of the claims," one staffer said. The government is simply pushing for "a decision that the case can't be litigated in light of national security interests involved."

In one case, the Electronic Frontier Foundation accused AT&T of collaborating with the National Security Agency in illegal spying on millions of customers. ...

In the AT&T case, EFF claims that the telecommunications firm provided the NSA a "dragnet" that collects "all or substantially all of the communications of U.S. citizens," a Justice official said. The second claim pertains to the alleged preservation of AT&T customers' call records.

Touché (but you have to wonder about the WaPo's capacity for embarrassment at how badly they were scooped):

So far, evidence in the case suggests a massive effort by the NSA to tap into the backbone of the Internet to retrieve millions of e-mails and other communications, which the government could sift and analyze for suspicious patterns or other signs of terrorist activity, according to court records, plaintiffs' attorneys and technology experts.

"The scale of these deployments is . . . vastly in excess of what would be needed for any likely application or any likely combination of applications, other than surveillance," says an affidavit filed by J. Scott Marcus, the senior Internet adviser at the Federal Communications Commission from 2001 to 2005. Marcus analyzed evidence for the plaintiffs in the case. ...

Tomorrow's hearing will focus only on whether the two lawsuits should be dismissed on the basis of the government's assertion of a "state secrets privilege." The outcome could determine whether the courts will ever rule on the legality of surveillance conducted by the NSA without judicial oversight between 2001 and January 2007, when the Bush administration first subjected the program to the scrutiny of a special intelligence court.

"If the courts take the position that the state-secrets privilege prevents the case from going forward, I think effectively there'll never be a decision about the legality of the program," said Cindy Cohn, the Electronic Frontier Foundation's legal director. ...

President Bush and his aides have confirmed that the NSA, beginning in late 2001, monitored electronic communications between the United States and overseas without warrants in cases in which one of the parties was believed to be affiliated with al-Qaeda. But administration officials have recently acknowledged that the NSA program was broader, and intelligence sources inside and outside the government have described a vast effort to collect and analyze telephone and e-mail communications that were later scrutinized by the government for desired information. ...

Some of the evidence also suggests that the NSA efforts were not limited to overseas e-mail communications and included the collection of purely domestic traffic. ...

Marcus, the former FCC adviser, said in a legal declaration recently unsealed in the case that the operation described by Klein "is neither modest nor limited" and was far more extensive than needed if it was focused only on international communications or on tasks other than surveillance.

"I conclude that AT&T has constructed an extensive -- and expensive -- collection of infrastructure that collectively has all the capability necessary to conduct large-scale covert gathering of [Internet protocol]-based communications information, not only for communications to overseas locations, but for purely domestic communications as well," said Marcus, a veteran computer network executive who worked at GTE, Genuity and other companies before joining the FCC.

James X. Dempsey, policy director at the Center for Democracy and Technology, said the evidence gleaned from the AT&T case appears to confirm that "there is a massive surveillance capability built into the network" by the federal government. But, Dempsey added, "the mere fact that the capability has been built and utilized still does not answer the fundamental question -- has it been exercised under constitutional parameters? That, in a way, is what these cases are trying to get to."

For a concise explanation of why the CATCH-ALL program is a fraud as advertized, see: Effective Counterterrorism and the Limited Role of Predictive Data Mining.