April 14, 2006 – 7:40 p.m.
Marty Kaiser is nearly cackling on the telephone as another e-mail arrives.
“Oh, you’ve gotta see this one,” he says.
He reads a few lines and laughs — it’s another missive from old friends and associates who are chiding him about the latest fallout from the NSA domestic spying case.
For months Congress and the National Security Agency had been wrestling over whether it was technically possible to prohibit the agency’s electronic eavesdropping from intruding into purely domestic telephone and Internet traffic.
As it turns out, the NSA has plugged directly into at least one communications carrier, according to a legal affidavit from a former AT&T employee, who said he saw NSA technicians set up a room at an AT&T office in San Francisco for just that purpose.
More NSA taps were being set up in other cities, “including Seattle, San Jose, Los Angeles and San Diego,” said Mark Klein, a retired AT&T worker who says he saw NSA technicians setting up the bug room in AT&T’s San Francisco switching station.
The arrangement in San Francisco gave the NSA complete access to the phone calls of AT&T’s customers, and directed their e-mails to data-mining equipment in the facility’s switching center.
To Kaiser, who 40 years ago was in Klein’s shoes at the center of another scandal involving illegal government wiretapping, the latest allegations of phone company collaboration ring true.
Dubbed “the Michelangelo of electronic surveillance” for all his work with government spy agencies in the 1960s, Kaiser, now 70, frequented facilities where the FBI was tapping into phone lines with Ma Bell’s help. One was in Baltimore, he recalled on the telephone from his vacation home in the Poconos, that had “30 listening stations along a switchboard with girls scribbling notes” from conversations they were eavesdropping on. Another was a couple blocks from the Capitol, above a restaurant on Pennsylvania Ave. SE.
But today’s scale of NSA spying is “really, really scary,” Kaiser said. “The speed and volume of data they collect is overwhelming, far, far beyond what we did” with the rudimentary voice-recognition software available 40 years ago.
Last week’s revelations come in the form of an affidavit Klein gave in support of a class action lawsuit by the Electronic Frontier Foundation (EFF) against AT&T, filed in U.S. District Court in Northern California in January. The EFF is seeking damages from AT&T on behalf of its customers for alleged violations of state and federal laws.
AT&T has petitioned the court for the return of technical documents Klein produced to support his affidavit, arguing that they reveal trade secrets, cause “grave injury” and “grave harm” to the company, and “potentially jeopardize AT&T’s network, making it vulnerable to hackers, and worse.”
The EFF, which filed the technical documents with the court under seal, has refused to turn them over to AT&T. The nonprofit cyber-rights group also has asked the judge for an immediate order to stop any warrantless NSA-AT&T spying on U.S. citizens. Neither the NSA nor AT&T is commenting on the lawsuit.
As a longtime telecommunications technician, Klein said he knew exactly what he was looking at in the AT&T facility. He says it destroyed any faith he had that the Bush administration was being careful not to intrude into law-abiding Americans’ privacy in its hunt for terrorists’ Internet and phone traffic.
“Based on my understanding of the connections and equipment at issue,” Klein said in his affidavit, “it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet — whether that be peoples’ e-mail, Web surfing or any other data.”
“Despite what we are hearing, and considering the public track record of this administration,” Klein added, “I simply do not believe [the Bush administration’s] claims that the NSA’s spying program is really limited to foreign communications . . .
“And unlike the controversy over targeted wiretaps of individuals’ phone calls,” he said, “this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens.”
All of this is quite amusing to Kaiser, whose autobiography, “Odyssey of an Eavesdropper: My Life in Electronic Countermeasures and My Battle Against the FBI,” was published to underwhelming acclaim last fall.
“Modesty aside, I was, to the FBI, the CIA and the rest of the Intel community, what “Q” — the British Secret Service technical genius — was to James Bond,” Kaiser wrote in the preface. He described how he invented a heart-stopping array of wiretaps and bugs for just about any government agency worth its acronym.
“I had a license to design the deadliest eavesdropping devices you can imagine, and some that will forever remain classified,” he wrote. “I built and supplied bugs to the FBI, the CIA, the DEA, Secret Service and the intelligence commands of the Army, Navy and Air Force.”
Modesty still aside, Kaiser claims he “could build an eavesdropping device that, planted in the right location, could bring down a government, prevent a terrorist attack or provide ammunition to a government law enforcement agency to smear a well-known American civil rights leader.”
That would be the Rev. Martin Luther King Jr., whose bedroom exploits were avidly eavesdropped upon by the FBI and then shopped around to friendly reporters.
When Kaiser spoke out against government abuse of its electronic surveillance powers at the National Wiretap Commission in 1975, his life went south — a cautionary tale for Mark Klein.
“I became a pariah within the intelligence community and was nearly driven into bankruptcy when my business dried up overnight and my clients stopped taking or returning my calls,” said Kaiser, now 70.
It cost him $300,000 to fight a Justice Department indictment — for illegal wiretapping, no less — that was dismissed by a jury “in less than three hours,” he says.
Klein might be able to sidestep any legal retaliation the government may bring against him, according to an NSA whistleblower who’s followed the AT&T developments closely.
“Because he likely has not signed any security classification agreements with the government, nor is he a federal employee under the executive branch, hence, he is free to tell his story to the press under his constitutional right to free speech,” said the whistleblower, who is forbidden to talk to the press without permission from the NSA.
“That is, if free speech still exists in this country,” he added. “An interesting question will be whether the government will try to slap him with a gag-order and start up their nonsense about ‘state’s secrets privilege,’ a concept of executive power originating in English common law that gives the government the power to nullify civil lawsuits that it says are a threat to national security, even if the government is not a party to the suit.
Kaiser nearly whistles at the thought of how much data the NSA is collecting.
“What the hell are they going to do with it all?” he wonders.
When they first got wind of the NSA-phone company arrangements, Sens.
Since Attorney General
Meanwhile, Klein better watch his back, Marty Kaiser says, and be careful of any device the government can use to spy on him.
“He should unplug his computer and phone line,” Kaiser said, “and don’t plug them back in until he really needs to use them.”
Bookshelf: Coming in June, yet another book on “Counter Insurgency and the Global War on Terror,” this one by Army battalion commander and military expert Robert M. Cassidy, who “bravely repudiates the military obsession for technology and firepower and instead methodically explores Russian, British and U.S. military cultures for more complex lessons of success,” according to Kings College professor John Mackinlay. Among the book’s many endorsers is former White House counterterrorism chief Wayne Downing, who calls it “valuable.”. . . There he goes again: Irrepressible Judge Richard Posner’s lambasting of the Bush administration’s intelligence reorganization is getting a lot of attention, including at the CIA, which recently invited the chief of the 7th Circuit to lead a seminar on his latest book, “Uncertain Shield: The US Intelligence System in the Throes of Reform.” Henry Kissinger, who knows something about centralizing intelligence, calls Posner’s book, his 45th, “illuminating and constructive.” Unplugged: The Association of Former Intelligence Officers’ valuable “Weekly Intelligence Notes” is offline, due to an unspecified medical problem suffered by its skilled editor, Derk Kinnane Roelofsma. They’re looking for a replacement.
CQ intern Ethan P. Sommer contributed to this story.
Jeff Stein can be reached at jstein@cq.com.