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February 16, 2007
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NOW Transcript - Show 307
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Transcript - February 16, 2007


Members of Congress spent the week expressing their views on the Bush Administration's plans for Iraq. But there's another war, now deep into its sixth year, that also bears continued and close examination: it's the one dubbed the global war on terror. It's also and expensive war in terms of cash and many would argue in terms of personal rights and liberties. You heard about the government secretly listening in on the pone conversations without a warrant... but there's evidence your email is also being tapped. Bryan Myers produced our report.

BRANCACCIO: Here's a question: How many e-mails did you deal with today? Ten? Twenty? Maybe more?

Now multiply your answer times every American who's on line. It's estimated that people in this country send billions of e-mails each day.

True, a lot of e-mails are junk. But others hold our inner most thoughts—they share intimacies, our complaints, or maybe our political opinions. And if you think your e-mails are private, prepare to watch and learn about a number of cases that each raise questions about how the government may be going through your electronic mail.

There's evidence the government has been intercepting most e-mails as part of its terrorist surveillance program. That program has been criticized as illegal because it's missing an important ingredient: search warrants.

BROSNAHAN: Your e-mails and my e-mails, and everybody else's e-mails were evidently going to a government room.
BRANCACCIO: James Brosnahan is an attorney. He represents this man, Mark Klein. For 22 years, Klein worked as a technician for the largest telecommunications company in America, AT&T. Several years ago, Klein says he came to suspect that AT&T had installed secret computer gear designed to spy on Internet traffic, at the request of the national security agency, or NSA. AT&T handles tens of millions of e-mails a day, not just for its own subscribers, but for other Internet companies too.

Upset by what he saw, Klein decided to blow the whistle.

KLEIN: I have been struggling for some months now to bring it out in the light of day. And that is all I really want to do, is bring it out there so that people can examine and decide for themselves.

This press conference took place last spring. Afterwards, Klein dropped out of sight—but not before he had taken an extraordinary step. A few months earlier, he showed up—unannounced—at the offices of the electronic frontier foundation. Located in San Francisco, the foundation fights to protect people's privacy. Kevin Bankston is one of their lawyers.

BANKSTON: Based on Mr. Klein's statements we have reason to believe that AT&T is assisting the NSA in collecting the communications, and communications records, of all or practically all of its customers.

BRANCACCIO: Klein gave Bankston a treasure trove of documents to support that allegation. Bankston isn't allowed to talk about the documents in detail—the government has since had them sealed—but, he says, what's in there boggles the mind.

BRANCACCIO: Would you describe what's going on at the AT&T facility as limited and focused or vast and broad?

BANKSTON: We are talking about a substantial portion of all the communications traffic in the United States.

BRANCACCIO: As a result, Bankston and his group are suing AT&T for violating the privacy laws which govern the big telecommunications companies.

NOW has obtained copies of what are believed to be Klein's documents. In them, Klein describes the construction of a room in the AT&T building in which he worked, located in downtown San Francisco. He even took a picture. According to Klein, only employees cleared by the national security agency were allowed to enter.

Several work orders instruct employees to split AT&T's transmission lines and feed them into the secret room. One of them shows they were interested in a facility called "Mae West." Mae West handles internet traffic for most of the west coast of the united states.

BANKSTON: What we're talking about is the wholesale diversion of millions upon millions of communications from AT&T's backbone network.

BRANCACCIO: Now just so I'm clear, are we taking about eavesdropping on only electronic communication, e-mail and so forth, that's from the United States to a foreign country?

BANKSTON: No. That infrastructure actually sweeps in an enormous amount of domestic communications as well. The same switches that carry our international traffic carry our domestic traffic.

At first blush, that might seem a bit crazy. Who could ever manage to collect and perhaps analyze that much data? But, the fact is, that's exactly what the NSA has been doing for decades outside the United States.

BRANCACCIO: And now, Bankston says, inside the United States as well. According to Mark Klein, the secret room at AT&T contains gear which enables the government to look at every individual message on the internet, and analyze exactly what people are doing.

Here's another document. It mentions a company called "Narus." Narus makes computer software that can swallow and analyze ten gigabytes of information every second. That means it could go through all the information in all the books in the Library of Congress in a little over 15 minutes.

The government has repeatedly denied that it is intercepting communications that are purely domestic. Gen. Michael Hayden, the director of central intelligence, has said, "This (program) isn't a drift net...this is focused." Kevin Bankston isn't buying it.

But what exactly would the government be looking for? Bankston has a theory.

BANKSTON: The NSA has developed automated computer systems that will scan those communications, whether voice or text, for key bits of intelligence, key names or words, or phrases that are of interest to their analysts.

BRANCACCIO: The government does not publicly discuss details of its terrorist surveillance program, or what's going on at AT&T. So we contacted the company. They declined to be interviewed, saying only, "AT&T is fully committed to protecting our customers' privacy. We do not comment on matters of national security."

Following 9/11, the government was criticized for failing to do enough to keep tabs on the terrorists. And, after all, that's what we pay our spies to do. But what if that spying violates our constitutional protections? That's what Nancy Hollander fears.

HOLLANDER: I've personally never been afraid of my government until now. And now I feel personally afraid that I could be locked up tomorrow.

BRANCACCIO: Nancy Hollander is a criminal defense attorney from Albuquerque, New Mexico. She represents several Muslim Americans, including a group called "The Holy Land Foundation." You may remember that in 2004, The Foundation made headlines when the government accused it of aiding the Palestinian group "Hamas."

To prepare her defense, Hollander spends a lot of time researching Hamas, and, in turn, sharing that information with colleagues via e-mail. In other words, Hollander is engaged in exactly the kind of activity that might draw the attention of government spies. In fact, her office sends hundreds of e-mails a day. Odds are, some of them travel over the AT&T network.

HOLLANDER: I have every reason to believe the government has listened to my conversations. And I don't think it's just paranoia. I have every reason to believe that it's happening to me because of the clients I'm representing at this time.

BRANCACCIO: government lawyers had already told Hollander that her clients had been spied on. And she believes that even her confidential attorney-client communications were intercepted.

HOLLANDER: I don't believe they're trailing me all the time. I don't believe that anyone is listening to all my phone calls or all my e-mails. But I don't which ones. and because we have these secret programs in this country now, we can't protect what we do as lawyers. And we can't guarantee our clients, our experts, our consultants, that our conversations are privileged.

BRANCACCIO: the Bush administration isn't especially concerned about this. In this letter to Congress, dated March 2006, it told members although the (terrorist surveillance) program, quote, "does not specifically target the communications of attorneys...calls involving such persons would not be categorically excluded from interception."

It's important to note, the sixth amendment to the Constitution guarantees defendants the right to an attorney. Federal law dictates that conversation between them be private. That confidential relationship is considered paramount to effective representation.

Trying to fulfill her obligations as an attorney, Hollander is taking some extreme measures.

HOLLANDER: My behavior as a practicing attorney has changed over the last few years. Because I feel like I have to travel a lot more. I'm very, very cautious about e-mails.

I traveled to Israel for a case that had nothing to do with terrorism from my perspective. It involved getting some documents from a Palestinian.

It's a huge hassle. I mean, I had to take a trip to the Middle East for a week. You know, fly there for 24 hours, be on the ground for three, fly home for 24 hours. It cost a lot of money. And it shouldn't have been necessary.

BRANCACCIO: What about when you're sending e-mails that have nothing to do with national security? Consider the case of the businessman behind some off-beat ads for—brace yourself—male enhancement products.

ADVERTISEMENT: This is Bob. Bob is looking cool. And with a call to Enzyte about natural male enhancement, Bob is living large.

BRANCACCIO: Steven Warshak owns the company that sells that Enzyte stuff. Several months ago, the Federal Government indicted Warshak for fraud, accusing him of false advertising. He's seen here with his attorney, Martin Weinberg.

Arising out of the Warshak case, another allegation: the government has been digging up and reading e-mails that have already been sent. Attorney Weinberg says government investigators built their case against Warshak largely by obtaining his old e-mails, in secret.

WEINBERG: These orders, these subpoenas were limitless. They didn't protect husband and wife communications. They didn't protect communications to friends and to family. They provided the government with the entirety of any e-mail that was retained by the service provider.

BRANCACCIO: For the better part of 20 years, the government has been ordering e-mail companies to fork over to investigators copies of people's e-mails, without getting search warrants. Officials justify their actions under a law written before most folks even had e-mail.

In court documents, the government has argued that federal law treats e-mails, "like a postcard." They say since the content of your e-mail is visible to employees of your internet service provider, e-mails are, quote, "not like a sealed letter."

Attorney Weinberg calls that outrageous, and unconstitutional. So he and client Warshak have filed the first lawsuit to challenge the government's actions.

WEINBERG: What's pivotal to the Fourth Amendment analysis is the reasonableness of a citizen's expectation of privacy. Internet service providers do not tell citizens that, by the way, your stored copied e-mail is available to the government.

BRANCACCIO: When you sign up for e-mail service at whatever provider, you sign away some of your privacy rights. They can look for child porn, they can look in to be sure your not engaged in other things you're not supposed to be engaged in. Don't you sign away your privacy rights when you do that?

WEINBERG: There is absolutely no evidence that internet service providers regularly view, or ever view, the content of private communications.

E-mails are ubiquitous. There are millions of e-mails every day, and all kind of citizens from all professions and all walks of life use e-mails. They believe, and we believe e-mails to be protected by the Fourth Amendment. The government does not.

BRANCACCIO: A federal judge has agreed with attorney Weinberg, and ordered the government to stop secretly rooting thru Steven Warshak's e-mails. The government is appealing that decision. As for the fraud case against Warshak, that's still pending.

And in another development, Congress is now considering a new piece of legislation that would require Internet service providers to save copies of your e-mails forever, under penalty of law.

Over the past year, there have been a number of revelations about the government's terrorist surveillance program. Last May, President Bush sought to reassure the nation.

BUSH; We are not mining or trolling through the personal lives of millions of innocent Americans.

BRANCACCIO: Remember, the President asserted he didn't need court approval or search warrants for that program.

BUSH: The intelligence activities I authorized are lawful...

BRANCACCIO: But last month, a sudden shift in stance—the administration announced it has obtained court approval for its surveillance activities. (but) they refuse to say whether that will limit the e-mails they look at. Key members of Congress remain skeptical.

WILSON: We have some very powerful intelligence tools. They have to operate within the law.

BRANCACCIO: Republican Heather Wilson of New Mexico supports the President's war on terror. She is a member of the powerful House Intelligence Committee, which has oversight of government spying activities. She says that even she has had a hard time getting a straight answer about what's going on.

WILSON: To come to the House Intelligence Committee and say, well, we haven't decided if we're going to give you the legal arguments for this new court order, everyone was stunned. What are they thinking?

BRANCACCIO: Wilson says it's how the administration describes the new plan which concerns her the most. In a brief statement, attorney general Alberto Gonzalez calls it "innovative."

WILSON: Whenever a court does something that's "creative" or "innovative," that means to me that you need to look at it particularly hard. Because judges aren't supposed to be creative and innovative. They're supposed to apply the law. And it is Congress that writes the law.

And we need to make sure that your conversations that you do want to keep private are protected. That's all.

BRANCACCIO: As for that lawsuit against AT&T, it is still awaiting trial. The Bush administration is fighting hard to have the case thrown out, claiming that simply discussing the issue would be a breach of national security.

But the cat's already out of the bag. Since then, other AT&T employees have come forward, calling attention to another secret room—this one at AT&T's facility near St. Louis—a place responsible for managing the company's internet operations nationwide.

BRANCACCIO: There's much more about these domestic surveillance issues over on our website. You can get to it at
We turn now to the legal underpinning that the Administration has developed in the war on terror - a series of memos and findings that grant the President expansive powers while laying out new restrictions on civil liberties.

John Yoo emerges as a key figure here. As a Deputy Assistant Attorney General in the Justice Department, he wrote many of the key opinions. He's now on the faculty at the law school of the University of California at Berkeley.

BRANCACCIO: Well, Professor Yoo, thank you for doing this.

YOO: Sure, thanks for having me.

BRANCACCIO: How far can a President go in trying to safeguard this country against terrorist threats, during a time of war?

YOO: I think the President can do anything that a regular commander-in-chief can do in wartime ranging from what kind of tactics to use on the battlefield, to bigger strategic questions of which countries to invade, which fronts to attack first.

BRANCACCIO: I've had a sense from reading your book, and some of the interviews you've done in the past, that when it comes to this area of protecting Americans, if there's a war, President has really unfettered latitude to do what has to be done. Is that your sense?

YOO: I don't think he has unfettered latitude. He is subject to the political checks. He's subject to funding checks. He's subject to Congress, trying to frustrate him or the courts trying to frustrate him. But there's no doubt that in wartime, Presidents exercise much broader power than they do in peacetime, because they are the commanders-in-chief.

And you could compare this war to previous wars. Presidents have done far more in wars like the Civil War, where President Lincoln suspended habeas corpus, Or World War II, where President Roosevelt interned over 120,000 loyal Japanese-American citizens. I actually think this administration has tried to not go too far, compared to previous Presidents in our history.

BRANCACCIO: How do you define war, though, in this context? This is a special kind of war.

YOO: Yeah.

BRANCACCIO: That may have no end, and could be perpetual that we're fighting these guys

YOO: Well, first, the fact that the war might be long doesn't mean that it's not a war. I think—what really causes people to be uncomfortable about whether this is a war is the fact that the enemy is not a nation state.

Because of that, we don't have enemy territory to capture. There's no enemy capital. There's no enemy population. Also, this enemy doesn't wear uniforms, doesn't have regular armed forces.

They attack us by the way they did on 9/11

BRANCACCIO: But when it comes to stopping a terrorist attack, you think the President can do what he wants at a time of war?

YOO: Yes. I completely—I think it has to be in wartime. I think the war is what triggers the President's broader commander-in-chief powers.

BRANCACCIO: You know, of course, it's not hard to find members of Congress who did vote for that war resolution after September 11th, who say, "We did not mean to confer blanket new powers on the presidency."

YOO: Well, then, they didn't read the act. The act says, "Congress authorizes the use of force." That's not just listening in on people's phone calls. That's killing people, the use of force against anyone connected or responsible to the September 11th attackers, including nations that have helped them or harbor them.

And so that is—it is the broadest authorization for war the Congress has ever passed in its history. It's not limited to a geographic region, as other previous wars have been.

I was someone who worked on that authorization, worked on the negotiations between the executive branch and Congress. Everyone at that time, in the week after September 11th, was fully aware that this was granting the President the broadest authorities possible to fight the war after September 11th.

BRANCACCIO: I saw you quoted a while back, suggesting that if the Congress really had a problem with the President overstepping his bounds in this area, they could impeach him.

YOO: Yeah. And that's the ultimate check is impeachment, and if there's a real disagreement, Congress can cut off the funds and ultimately they can remove the President.

BRANCACCIO: Well, I remember during the Carter administration, Congress passed a law that set some limits on how far a President could go in the case of domestic surveillance. Are you comfortable with that law? It's about 1978, I think it was, '79.

YOO: You're referring to the Foreign Intelligence Surveillance Act. Keep in mind even when Carter signed that law, his attorney general issued a statement saying that this can't take away from the President's commander-in-chief power, power to do surveillance for national security purposes. Lower courts like the FISA review court, in its only decision a few years ago, said the same thing. What the FISA law does, is it places conditions and limitations on this kind of surveillance if the President ever wants to use it in court. I don't think the Congress can prevent the President from gathering that intelligence if it's needed to stop a terrorist attack. But I think Congress can place limits if the President wants to use it to prosecute someone and throw them in jail someday.

BRANCACCIO: But shouldn't I be worried? You have this Executive branch, which seems to think that that law is outmoded, and so it just ignores a law. Is that what a President should be doing?

YOO: Well, I don't think it's ignoring law. I think the ultimate law is the Constitution. And it's the Constitution that gives the President the commander-in-chief power. It's the Constitution which gives the President responsibility to protect the national security. I don't think the President can act without any legal authority at all. But if the Constitution gives him greater authority, and a statute tries to limit it, the Constitution has to prevail.

BRANCACCIO: That's it for NOW. From New York, I'm David Brancaccio. See you next week.

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