Thu May 11, 12:00 AM ET
The Nation -- Two months after the New York Times revealed that the Bush Administration ordered the National Security Agency to conduct warrantless surveillance of American citizens, only three corporations--AT&T, Sprint and MCI--have been identified by the media as cooperating.
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Despite the President's rigorous defense of the program, no company has dared to admit its cooperation publicly. Their reticence is understandable: The Justice Department has launched a criminal investigation of the government officials who leaked the NSA story to the Times, and many constitutional scholars and a few lawmakers believe the program is both illegal and unconstitutional. And the companies may be embarrassed at being caught--particularly AT&T, which spent millions advertising its global services during the Winter Olympics. "It's a huge betrayal of the public trust, and they know it," says Bruce Schneier, the founder and chief technology officer of Counterpane Internet Security, a California consulting firm.
Corporations have been cooperating with the NSA for half a century. What's different now is that they appear to be helping the NSA deploy its awesome computing and data-mining powers inside the United States in direct contravention of US law, which specifically bans the agency from collecting information from US citizens living inside the United States. "They wouldn't touch US persons before unless they had a FISA warrant," says a former national security official who read NSA intercepts as part of his work for the State Department and the Pentagon.
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...today's global telecom market includes dozens of companies that compete with AT&T, Sprint and MCI for telephone and mobile services, as well as scores of Internet service providers like Google, Yahoo! and AOL that offer e-mail, Internet and voice connections to customers around the world. They are served by multinational conglomerates like Apollo, Flag Atlantic and Global Crossing, which own and operate the global system of undersea fiber-optic cables that link the United States to the rest of the world. Any one of them could be among the companies contacted by intelligence officials when President Bush issued his 2002 executive order to obtain surveillance without FISA approval.
Nobody's talking, though. Asked if AT&T, which was recently acquired by SBC Communications, is cooperating with the NSA, AT&T spokesman Walt Sharp said, "We don't comment on national security matters." He referred me to a recent AT&T letter to Representative Conyers, which stated that AT&T "abides by all applicable laws, regulations and statutes in its operations and, in particular, with respect to requests for assistance from governmental authorities." MCI, which was acquired in January by Verizon, and Sprint, which recently merged with Nextel Communications, declined to comment. Attorney Gidari, who has represented Google, T-Mobile, Nextel and Cingular Wireless (now part of AT&T), believes that "some companies, both telecom and Internet," were asked to participate in the NSA program. But he suggests that only a limited number agreed. "
The list of those who said no is much longer than most people think," he says.
The NSA, some analysts say, may have sought the assistance of US telecoms because most of the world's cable operators are controlled by foreign corporations. ...The NSA could get access to this traffic by sending a submarine team to splice the cables in international waters, as the agency once did to the Soviet Union's undersea military cables. But that is an extremely expensive proposition, and politically dicey to boot--which is where the US telecoms come in. "Cooperation with the telcos doesn't make NSA surveillance possible, but it does make it cheaper," says Schneier, the technology consultant.
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History proves a good guide to how the NSA would go about winning cooperation from a telecom company. When telephone and telegraph companies began assisting the NSA during the 1940s, only one or two executives were in on the secret. That kind of arrangement continued into the 1970s, and is probably how cooperation with the NSA works today, says Kenneth Bass III, a Justice Department official during the Carter Administration. "Once the CEO approved, all the contacts [with the intelligence agencies] would be worked at a lower level," he says. "The telcos have been participating in surveillance activities for decades--pre-FISA, post-FISA--so it's nothing new to them." Bass, who helped craft the FISA law and worked with the NSA to implement it, adds that
he "would not be surprised at all" if cooperating executives received from the Bush Administration "the same sort of briefing, but much more detailed and specific than the FISA court got when [the surveillance] was first approved." 
Those executives, all of whom hold security clearances, meet at the White House once a year--Vice President Cheney was the speaker at their last meeting--and hold quarterly conference calls with high-ranking officials. ...AT&T also makes no bones about its national security work. When SBC was preparing to acquire the company last year, the two companies underscored their ties with US intelligence in joint comments to the FCC. "AT&T's support of the intelligence and defense communities includes the performance of various classified contracts," the companies said, pointing out that AT&T "maintains special secure facilities for the performance of classified work and the safeguarding of classified information."
MCI, too, is a major government contractor and was highly valued by Verizon in part because of its work in defense and intelligence.
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There's another group of companies, largely overlooked, that could also be cooperating with the NSA. These are firms clustered around the Beltway that contract with the agency to provide intelligence analysts, data-mining technologies and equipment used in the NSA's global signals-intelligence operations. The largest of them employ so many former intelligence officials that
it's almost impossible to see where the government ends and the private sector begins.
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Are firms that cooperate with the NSA legally culpable? Bamford, who is not a lawyer but probably knows more about the NSA than any American outside government, says yes. "The FISA law is very clear," he says. "If you don't have a warrant, you're in violation, and the penalty is five years and
you can be sued by the aggrieved parties." Kevin Bankston, an attorney for the Electronic Frontier Foundation, adds that US law "not only prohibits unauthorized wiretapping; it also prohibits unauthorized disclosure or use of illegally wiretapped information. As long as you were doing that, you're potentially liable." Schneier, the technology consultant, harbors no doubts either. "
Arguing that this is legal is basically saying we're in a police state."
