The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. We speak with Mark Klein, a technician with AT&T for over twenty-two years. In 2006 Klein leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables. [includes rush transcript]
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act, or FISA, tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. It gives the government new powers to eavesdrop on both domestic and international communications and could also grant immunity to phone companies involved in President Bush’s secret domestic spy program. The Democratic-controlled House approved its version of the bill late last month.
Wisconsin Senator Russ Feingold, speaking on Democracy Now!, called the measure "one of the greatest intrusions, potentially, on the rights of Americans protected under the Fourth Amendment of the US Constitution in the history of our country."
I’m joined right now by a man who blew the whistle on the involvement of phone companies in the Bush administration’s domestic surveillance program. Mark Klein was a technician with AT&T for twenty-two years. In 2006, he leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables. He testified before Congress last November to urge lawmakers not to give A&T and other telecom companies immunity.
Mark Klein is also a witness in a lawsuit filed by the Electronic Frontier Foundation, which alleges AT&T illegally gave the National Security Agency access to its networks. Mark Klein joins us now from San Francisco, California.
Welcome to Democracy Now!
MARK KLEIN: Thank you. Good morning, Amy.
AMY GOODMAN: It’s very good have you with us. This is highly controversial, the vote that is expected to take place tomorrow, especially Senator Obama’s role in it. But let’s go back to the beginning, Mark Klein. Talk about how you found out about AT&T spying on Americans.
MARK KLEIN: Right. I first should add a correction: Congress never invited me to testify, although I did go to Washington to lobby, but no committee has ever invited me to testify, which says something about Congress.
But going back to 2002, we were told one day in late 2002 that an NSA representative was coming to the office to speak to a certain management technician about a special job. And this turned out to be installing a secret room in the next office I was going to be in the following year. And that secret room involved a lot of spying equipment. Only this one management technician could go in there, and the regular union technicians were not allowed to go in there.
But when — in 2003 I was assigned to that office, and I got hold of the documents which were available — they’re not classified — and the documents showed what they were doing. They were basically copying the entire data stream going across critical internet cables and copying the entire data stream to this secret room, so the NSA was getting everything.
AMY GOODMAN: And what was the response when you started to talk about this?
MARK KLEIN: Well, while I was still working at AT&T, I didn’t say anything, because I wanted to keep my job, and it was a scary atmosphere back then, you may remember. But I sat on it, then took some mental notes, and after I retired in 2004 and the end of 2005, when the New York Times came out with their expose that there was warrantless wiretapping going on, then I came forward in early 2006, and I tried to present my documents to some media groups and to some civil liberties groups, including the Electronic Frontier Foundation. And I became a witness in EFF’s lawsuit against AT&T.
AMY GOODMAN: Mark —-
MARK KLEIN: And eventually -—
AMY GOODMAN: Go ahead.
MARK KLEIN: Yeah. And eventually, the media came onto the story. The New York Times came out with the story in April 2006.
AMY GOODMAN: Can you talk about the Democratic leadership and Senator Barack Obama, the presumptive Democratic presidential nominee, of course, of the Democratic Party, calling the bill that’s going to be voted on a compromise?
MARK KLEIN: Well, the Democratic Party and the Congress, in general, has been unfriendly to me for the last two years of my efforts. As I say, I’ve been trying to bring my information forward for about two years now. Even after the Congress went Democratic, they turned their back on me, except for a couple of individuals, like Senator Dodd was friendly and a couple of congressmen. No committee of Congress would invite me to testify; it’s never happened. My attorney sent letters, which were never answered. And they never — and they voted not to investigate. So it’s been clear for some time that Congress wants to help the President cover this up, and they were just looking for a way to do it.
And so, now they have a bill that claims to get some kind of concessions. In fact, they got no concessions. This bill would give immunity to the phone companies and thus would kill any hope of finding out what happened by the lawsuits against AT&T and the other companies. And so, Congress is intervening against the judicial process to kill the lawsuits and essentially protect the President.
And it’s kind of ironic, because, you may know, the FISA law itself originated when the Democratic Party in Congress discovered that Nixon was trying to spy on Democratic National Committee headquarters in the ’70s, and they passed this law to require that any domestic spying must go — must be approved by a secret court, a FISA court. And now, the Democratic Party is helping to basically destroy this law. If this bill passes, the law will become a toothless dead letter, as far as I can tell.
The message that will go out is that, on paper, the President is not supposed to do this, but everybody knows the President violated the law over and over, and now he’s going to get away with it. That’s the message if they pass this law: you can get away with it; we’re not going to enforce this law.
AMY GOODMAN: I recently interviewed Democratic Senator Russ Feingold of Wisconsin. He’s been leading the congressional — he’s the leading congressional voice against the Bush administration’s warrantless spy program since it was exposed. I asked him what role telecommunications companies had in rewriting the FISA bill.
SEN. RUSS FEINGOLD: Well, they clearly wanted this immunity. They think they should be let off the hook, regardless of what the current laws require. I think, and many of my allies on this think, that the courts should decide it based on the law.
Sadly, the administration has been very behind the telephone companies’ desire to have this immunity, maybe even leading the charge, because there is an additional benefit to them if this immunity goes through. It may block our ability to directly challenge in court the violation of the Constitution that the illegal wiretapping program represents.
The President takes the position that under Article II of the Constitution he can ignore the Foreign Intelligence Surveillance Act. We believe that that’s absolutely wrong. I have pointed out that I think it is not only against the law, but I think it’s a pretty plain impeachable offense that the President created this program, and yet this immunity provision may have the effect not only of giving immunity to the telephone companies, but it may also allow the administration to block legal accountability for this crime, which I believe it is.
AMY GOODMAN: That was Senator Russ Feingold. Mark Klein, your response?
MARK KLEIN: Yeah, Senator Feingold and Senator Dodd have been waging a valiant last-ditch effort to stop this thing. The problem they face is that their own party leadership is against them. This latest bill was rammed through the House by Speaker Pelosi, who had said earlier that she was against immunity, but then she suddenly turned and rammed this through.
And the same thing is happening now in the Senate. And Senator Obama, who a few months ago, before he was the nominee, explicitly said he would not vote for any bill that had immunity in it, and now, a few days ago, he’s reversed his position and said he will vote for this bill.
So the Democratic leadership is overriding the fights that Feingold and Dodd are trying to wage, and they’re basically carrying out a secret agreement with the White House. Remember, there were never any open hearings on this. They met in secret with the telephone lobbyists and with intelligence agency officials. It was all a secret deal, a conspiracy against the American people. They never had hearings. I was never invited to any hearings. And they’re going to ram this through.
AMY GOODMAN: Mark Klein, Eric Lichtblau wrote a piece in the New York Times on Thursday that says, “A federal judge in California said Wednesday that the wiretapping law established by Congress was the ‘exclusive’ means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.”
The judge is Vaughn Walker, the chief judge for the Northern District of California. He “made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after [the terrorist attacks of] Sept. 11.”
MARK KLEIN: Yes, Judge Walker, it’s his court where the AT&T case is in now, and he’s clearly been unsympathetic to the government’s attempts to squash this case, and that’s why they went secretly to Congress to squash the case, because they’re really afraid of an open court hearing. They don’t want an open court hearing.
And Judge Walker did a fine ruling, basically arguing that the President had no authority to override FISA. And that’s one of three rulings that have happened against the President and against the government. The problem, of course, is that Walker’s ruling has no practical effect, because the case he was ruling on, the Al-Haramain case, cannot go forward, because the only piece of evidence they have has been declared a state secret by the government. That’s their convenient way of getting rid of evidence is declare it a state secret, so therefore, it’s out of the court, court can’t handle it.
AMY GOODMAN: His decision being particularly significant, because all the lawsuits involving the telephone companies that took part in the NSA program have been consolidated and are being heard in his case, including the one you’re involved with, right, Mark Klein?
MARK KLEIN: That’s right. The AT&T case is in his court right now, just awaiting the approval to go forward. We’re waiting for the Ninth Circuit to give the green light to go forward with the case.
AMY GOODMAN: So what does this mean now for you? What does this legislation, if passed by the Senate, mean for that lawsuit?
MARK KLEIN: Well, this legislation will direct the court to dismiss all the cases against AT&T and other companies, if they can just show they have a piece of paper showing that they got an order from the President to do this. It’s — I call it the Nuremberg defense: “We were just following orders.” The judge won’t be able to rule on whether the law — the order was legal. He can only rule on where they got this piece of paper. It’s a ridiculous ruling and attempt by the Congress to gag the judge and prevent him from ruling on the legality of the order, and the judge has to simply just determine that their paperwork is in order. So everybody knows, if this bill passes, the judge will be forced to dismiss the cases.
AMY GOODMAN: And what will this mean, in terms of, for example, the AT&T case, and in terms of you coming forward as a whistleblower?
MARK KLEIN: Well, I assume the case will just get dismissed, and it’ll never happen. I’ll never get called. There will never be any hearings. It will die, and you’ll never find out what they did. And that was the point of having this lawsuit. It wasn’t about getting money out of the companies. I wouldn’t get anything, by the way; I’m just a witness, I’m not a party to this lawsuit. And it was about finding out what happened. And that’s why they want to kill the lawsuit.
AMY GOODMAN: Well, I want to thank you very much, Mark Klein, for joining us, former technician at AT&T for over twenty-two years, witness in a lawsuit filed against AT&T by the Electronic Frontier Foundation, which alleges AT&T illegally gave the NSA access to its networks. The Senate is expected to vote on the FISA legislation on Tuesday. It would grant retroactive immunity to the phone companies.