[NYTr] Bush Seeks Legal Immunity for Spying Telecoms

[All the News That Doesn't Fit]

AP via Truthout - Aug 31, 2007
http://www.truthout.org/docs_2006/083107T.shtml

Bush Seeks Legal Immunity for Telecoms

The Associated Press

Washington - The Bush administration wants the power to grant legal
immunity to telecommunications companies that are slapped with privacy
suits for cooperating with the White House's controversial warrantless
eavesdropping program.

The authority would effectively shut down dozens of lawsuits filed
against telecommunications companies accused of helping set up the
program.

The vaguely worded proposal would shield any person who allegedly
provided information, infrastructure or "any other form of assistance"
to the intelligence agencies after the Sept. 11, 2001 terror attacks. It
covers any classified communications activity intended to protect the
country from terrorism.

Republicans say immunity is necessary to protect the companies that
responded to legal presidential orders to thwart terrorists in the years
after 9/11. Yet some Democrats fear the administration's proposal would
do much more than advertised, potentially protecting anyone who gave
broad categories of aid to the government as part of a spy program that
monitors communications.

Because the administration does not want to identify which companies
participated in the operations, it is asking Congress to let the
attorney general intervene on behalf of any person or company accused of
participating in the surveillance work, whether or not they actually
did, two senior Justice Department officials said.

More than a dozen government officials interviewed for this story
spoke on condition they not be identified because sensitive negotiations
with Congress are ongoing.

One of the officials said the defendants in suits brought by the
American Civil Liberties Union - Verizon and AT&T - would be the key
beneficiaries of the proposed legislation. Both companies are a central
part of the U.S. communications grid, running networks that transmit
both telephone calls and e-mails.

There is a divide among Capitol Hill's majority Democrats about
whether the companies deserve any protection. Some believe they were
operating in good faith, on orders that appeared to be lawful. Others
believe lawyers at the companies had a responsibility to ensure the
requests weren't an abuse of presidential power.

National Intelligence Director Mike McConnell considers the issue a
key element of any legislation that Congress considers this fall to
update the Foreign Intelligence Surveillance Act, known as FISA.

Trying to make his point, McConnell recently confirmed that the
private sector assisted with the surveillance work - and faces lawsuits.
"If you play out the suits at the value they're claimed, it would
bankrupt these companies," McConnell told the El Paso (Texas) Times in
an interview posted online last week.

The companies could face civil penalties of at least $1,000 per
customer, for a total that would reach well into the billions.

Democrats say McConnell's first draft of the immunity proposal is
far too murky. Sen. Ron Wyden, D-Ore., an intelligence committee member,
fears the language would go far beyond protecting private companies and
their employees, also giving cover to any government officials who may
have broken the law.

"I and others are going to make sure that anything that is done is
done in a narrow, targeted way," Wyden said.

Missouri Sen. Kit Bond, the intelligence committee's top Republican,
said, "The only question here is whether we should provide full
liability protection to those companies that are alleged to have
assisted the government in protecting the United States. The answer is
a resounding 'yes."'

In the weeks after 9/11, the White House launched a new surveillance
program that allowed the National Security Agency to monitor
communications between people in the United States and others overseas
when terrorism was suspected. With legal directives in hand, the
government asked a narrow group of telecommunications carriers to
participate in a program.

Conventional wisdom has long been that the bulk of the surveillance
operations - groundbreaking because they lacked judicial oversight -
involved primarily telephone calls. However, officials say the Bush
administration's program frequently went after e-mail and other Internet
traffic, which al-Qaida has embraced as a key means of communication.

After the highly classified operations became public in 2005, a wave
of lawsuits was filed, including cases against AT&T and Verizon, two
telecommunications providers alleged to have participated. The legal
battles gave the telecommunications industry pause, government officials
said.

David S. Kris, former associate deputy attorney general for national
security issues, said the debate over immunity raises a broad policy
question: "To what extent is the private sector supposed to be a check
on government power?"

Answering that question is difficult, he said, because lawmakers and
the public don't know exactly how the government crafted its request for
cooperation. "If the attorney general says, 'Your country needs you to
do this to save lives,' that may generate some sympathy for a company
that cooperates," Kris said.

How the government conducts surveillance during national security
investigations is expected to be a leading issue when the
Democratic-controlled Congress returns next week and contemplates
changes to FISA.

Before leaving for an August recess lawmakers approved significant,
but temporary, amendments to the law that governs when and how the
government can conduct intelligence surveillance on U.S. soil. Many
Democrats felt they were railroaded into a faulty law by Republicans who
insisted on action because of heightened concerns about possible terror
attacks.

Lawmakers will have to decide what, if any, changes to make
permanent. The administration also plans to demand that
telecommunications immunity is part of the debate.

Rep. Jane Harman, D-Calif., who has been briefed on the NSA's
surveillance work, said she's open to a provision that would protect
those who in good faith believed they were complying with the law. But
"just adding on more ways in which this administration can police itself
and make good on whatever deals it has made with the private sector, I
think will not be supported in Congress," she said.

The temporary changes to FISA, which will remain in effect until
February unless they are changed earlier, limits how often the
government has to go to the secretive Foreign Intelligence Surveillance
Court to get approvals for surveillance.

They say the government doesn't need the court's OK to monitor
foreign suspects in national security investigations when the suspects
are talking to Americans. Nor does the government need a court warrant
to monitor conversations between two foreigners when the eavesdropping
is done on communications that use U.S. networks.

    Republicans and the Bush administration continue to argue that the
changes were necessary because the law wasn't keeping up with
technology, the Justice Department was wasting precious hours on
paperwork, and the secretive FISA court that oversees the law was
overworked.

U.S. District Judge Royce C. Lamberth, who presided over the
11-member FISA court from 1995 to 2002, believes judges play an
important part of the process.

The value added by having judges in the process "is that we
recognize the rights of the person who is not represented," said
Lamberth, who continues to follow FISA matters. "We're ensuring there
is some valid national security purpose. I don't know why you wouldn't
want that value added."

On the Web:

Justice Department: http://www.usdoj.gov/

Office of the Director of National Intelligence: http://www.dni.gov/

AT&T Inc.: http://www.att.com/

Verizon Communications Inc.: http://www22.verizon.com/

[Associated Press writers Matt Apuzzo and Lara Jakes Jordan contributed
to this report.]