Watching What You Say
MCI, too, is a major government contractor and was highly valued by Verizon in part because of its work in defense and intelligence. Nicholas Katzenbach, the former US Attorney General who was appointed chairman of MCI's board after the spectacular collapse of its previous owner, WorldCom, reiterated MCI's intelligence connections in a 2003 statement to the Senate Judiciary Committee. "We are especially proud," he wrote, "of our role in supporting our national-security agencies' infrastructure, and we are gratified by the many positive comments about our service from officials at the US Department of Defense and other national-security agencies." MCI's general counsel--who would presumably have a say in any decision to cooperate with the NSA--is William Barr. He is a former assistant general counsel at the Central Intelligence Agency and served as Attorney General during the Administration of President George H.W. Bush.
Sprint Nextel is top-loaded with executives with long experience in national security and defense. Chairman and CEO Gary Forsee is a member of Bush's telecom council (as is Lawrence Babbio, the vice chairman and president of Verizon). Keith Bane, a company director, recently retired from a twenty-nine-year career with Motorola, which has worked closely with US intelligence for decades. William Conway Jr. and former FCC chairman William Kennard are managing directors of the Carlyle Group, the Washington private equity fund that invests heavily in the military and has extensive contacts in the Bush Administration.
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. Booz Allen Hamilton, the prime contractor for Trailblazer, a huge NSA project updating its surveillance and eavesdropping infrastructure, employs several NSA alumni, including Mike McConnell, its vice president, who retired as NSA director in 1996. (Ralph Shrader, the company's CEO, joined Booz Allen in 1978 after serving in senior positions with Western Union and RCA, both of which cooperated with the NSA on Operation Shamrock.) SI International, a software and systems engineering company with NSA contracts, recently hired Harry Gatanas, the NSA's former director of acquisitions and outsourcing, to oversee its $250-million-a-year business with US intelligence and the Pentagon. Science Applications International Corporation, another big NSA contractor, is run by executives with long histories in military intelligence, including COO Duane Andrews, a former Assistant Secretary of Defense for Command, Control, Communications and Intelligence.
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."
But Gidari, the Seattle telecom attorney, believes that companies would be insulated from legal challenges if they had assurances from the government that the program was within the law. He also says Congress has passed legislation granting immunity to companies operating under "statutory grants of authority" from the government. "It's not a slamdunk, but it is a good-faith defense," he says. Former Justice Department official Bass agrees but says reliance on oral requests from US officials is another matter: "If they didn't get the type of legal assurances the FISA provides for"--such as a written statement from the Attorney General--"there could be some legal exposure." But a full airing of the legal issues raised by the surveillance program may be a long time coming. "The likelihood of any enforcement absent a change in administration is zero," Bass says.