Intellectual Property Law

U.S. Attorney General Michael Mukasey on Saturday denied that the Bush administration -- in conjunction with the nation's telecommunication companies -- devised a "dragnet" electronic surveillance program that funneled Americans' communications to the National Security Agency without court warrants.

But the attorney general also insisted that defending his claim in court would harm national security.

"Specific information demonstrating that the alleged dragnet has not occurred cannot be disclosed on the public record without causing exceptional harm to national security," Mukasey wrote in a federal court filing in San Francisco. "However, because there was no such alleged content-dragnet, no provider participated in that alleged activity."

It was the first time Mukasey, as the nation's top law enforcement official, provided an emphatic and wholesale written courthouse denial of allegations contained in lawsuits accusing the Bush administration of widescale domestic spying in the years following the 2001 terror attacks. Keith Alexander, the NSA director, issued a similar courthouse denial in a 2007 court document (.pdf).

Despite Mukasey's denial, contained in a court filing (.pdf) made public Saturday, Mukasey asked a federal judge to grant immunity to the nation's telecommunications companies accused of assisting with the alleged surveillance dragnet. It is the first time the government has invoked the immunity legislation (.pdf) Congress approved July 9,  which was signed by President Bush the next day.

Democratic presidential candidate Barack Obama voted for the immunity bill and helped block a filibuster. Republican rival John McCain supported the measure, but did not vote.

The lawsuit was brought in 2006 by the San Francisco-based Electronic Frontier Foundation. The EFF's lawsuit includes documents from a former AT&T technician that the EFF claims describe a secret room in an AT&T building in San Francisco that is wired up to share raw internet traffic with the NSA.

The attorney general's statements were provided to U.S. District Court Judge Vaughn Walker in addition to the government's motion (.pdf) to grant the telcos immunity. Walker, of San Francisco, is overseeing three dozen lawsuits accusing U.S. telecommunication companies of taking part in the government's alleged "dragnet" surveillance program.

According to the immunity bill, Congress authorized Mukasey to inform Judge Walker via classified and non-public documents about why the government is seeking immunity on behalf of the communication companies. According to the legislation, Walker has little power to deny Mukasey's request.

Still, Mukasey's filing did acknowledge the Terrorist Surveillance Program. The so-called TSP authorized the NSA to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaeda, or affiliated terrorist organization. Bush acknowledged the program after the New York Times disclosed its existence in 2005.

Mukasey, as part of his court filing, sought immunity for the telecoms that participated in the TSP program. The TSP has now been legalized by Congress.

See Also:

• Rights Group Suing AT&T for Spying Sues NSA and Cheney Too
• ISPs Will All Spy on Their Customers, Professor Warns
• Gonzales Violated Security Rules with Spy Docs, Lied to Cover it Up
• Bush Signs Spy Bill, ACLU Sues
• AT&T Whistleblower: Spy Bill Creates 'Infrastructure for a Police ...
• Only Government Can Argue in Secret Spy Court, Feds Say
• Justice Department Moving to Immunize Snooping Telcos
• NSA Judge: 'I feel like I'm in Alice and Wonderland'
• EFF Moving to Uncover Telco Immunity Lobbying
• Analysis: Spy Ruling Portends Hurdles for AT&T Eavesdropping Case
• Analysis: Spy Ruling Bodes Well for AT&T Eavesdropping Case
• Lawyers Decry New Spy Law as Unconstitutional, Urge Federal Judge ...