Obama goes to bat for Bush wiretap program

Bob Egelko, Chronicle Staff Writer
Thursday, July 16, 2009

(07-15) 17:41 PDT SAN FRANCISCO -- President Obama is adamant about maintaining the secrecy of a wiretapping program authorized by George W. Bush, an administration lawyer told a federal judge in San Francisco on Wednesday.

Obama "does not intend to use the state-secrets privilege to cover up illegal activities," said Justice Department attorney Anthony Coppolino. But in exceptional circumstances, he said, the president will invoke secrecy to protect "the sources and methods of detecting terrorist attacks ... the crown jewel of the United States national security administration."

Coppolino said the administration will cite national security in seeking dismissal of a lawsuit by telephone customers accusing the government of illegally intercepting phone calls and obtaining phone company records.

Chief U.S. District Judge Vaughn Walker heard about 90 minutes of arguments and said he would rule later.

The suit is similar to claims filed against AT&T and other telecommunications firms in 2006, following Bush's acknowledgement that he had authorized eavesdropping on Americans' communications with suspected foreign terrorists without seeking court approval.

Walker, in whose court the cases were consolidated, dismissed the suits earlier this year based on a 2008 law that shielded the companies from liability for alleged cooperation with surveillance that Bush had authorized.

That law did not prevent private citizens from suing the government, as long as they could show they were the targets of illegal eavesdropping. The current suit, filed by most of the same customers who sued AT&T, claims that a "dragnet surveillance" program intercepted millions of messages to mine them for suspicious content.

Although both the Bush and Obama administrations have refused to discuss the extent of phone company participation, several members of Congress have confirmed that the government obtained records from phone companies, the plaintiffs' lawyer, Kevin Bankston of the Electronic Frontier Foundation, told Walker.

The judge said in a 2006 ruling that AT&T had helped the government in surveillance, citing statements by federal officials and a former AT&T employee. On Wednesday, he asked Coppolino whether anything had changed that would justify dismissing the latest lawsuit.

The Justice Department lawyer replied that the plaintiffs will have to air classified information in court about "the nature and scope of the government's surveillance program" to prove their case, and the government will have to do the same to defend itself. That "would risk exceptional harm to the national security," Coppolino said.

Walker, however, cited a recent inspector general's report on U.S. intelligence that said the surveillance was far broader than Bush had described and was on legally shaky ground.

An unclassified version of the report was released last week. Walker said the full report might show whether officials had violated private citizens' constitutional rights.