Watergate Echoes in NSA Courtroom

Wired News: Watergate Echoes in NSA Courtroom:

It was perhaps inevitable that someone would compare President Bush's extrajudicial wiretapping operations to Richard Nixon's 1970s-era surveillance of journalists and political enemies. Both were carried out by Republican presidents; both bypassed the courts; both relied on the cooperation of U.S. telecommunications companies.

But there's some irony in the fact that it was AT&T to first make the comparison in a federal courtroom here, while defending itself from charges of complicity in Bush's warrantless spying.

Company attorney Bradford Berenson cited the case of The New York Times reporter Hedrick Smith, who'd been illegally wiretapped by Nixon's Plumbers as part of an investigation into White House leaks. In 1979, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Smith couldn't sue Chesapeake & Potomac Telephone Company -- then part of AT&T's Bell System -- for installing the wiretaps at the Plumbers' behest.

The Nixon Defense was one of several arguments offered Friday by AT&T and the Justice Department in their bid to win summary dismissal of the Electronic Frontier Foundation's class-action lawsuit. The suit accuses the company of providing the National Security Agency with access to customer and non-customer internet traffic passing through AT&T's systems, without a warrant.

Without confirming the allegations, AT&T said if it is cooperating with the NSA, it can't be held responsible, because -- as in the Nixon case -- it's serving as a 'passive instrument or passive agent of the government,' said Berenson.

'AT&T could refuse, could it not, to provide access to its facilities?' countered U.S. District Judge Vaughn Walker.

Berenson replied that AT&T would refuse any clearly illegal request, and a courtroom overflowing with EFF supporters broke into murmured, sardonic laughter. In the back, late-coming observers unable to win a seat pressed their faces against the windows of the courtroom door.


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