The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.
The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.
At the time, the White House was proposing a surveillance bill—strongly backed by the telecoms—that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program.
It won't happen now. This article should be the skewer through the heart of any effort to bring telecom immunity before the Congress.
The recent responses in the Electronic Frontier Foundation lawsuit provide no new information about the administration's controversial post-9/11 electronic surveillance program itself, but they do shed some light on the degree of anxiety within the telecom industry over the litigation generated by the carriers' participation in the secret spying. One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about "various options" to block the lawsuits, including "such options as court orders and legislation." Another declaration refers to a letter and "four fax cover sheets" exchanged between the telecoms and ODNI over the surveillance matter. Yet another discloses e-mails in which lawyers for the telecoms and the Justice Department "seek or discuss recommendations on legislative strategy."
The declarations were filed in court by government lawyers only after U.S. Judge Jeffrey White in San Francisco, who is overseeing the case, ordered them to fully process the Electronic Frontier Foundation's FOIA request for documents showing lobbying contacts by the telecoms. The government initially resisted even responding to the FOIA request, but White found that disclosure was in the public interest because it "may enable the public to participate meaningfully in the debate over" the pending surveillance legislation.
Director of National Intelligence Mike McConnell has already been hemmed in on this issue:
Four former senior intelligence officials wrote a strong letter yesterday to Director of National Intelligence McConnell, calling the Administration's hard line on telecom immunity an impediment to negotiations on the pending FISA legislation.
The letter, signed by former Senior Director for Combating Terrorism at the National Security Council Rand Beers, former head of counterterrorism at the National Security Council Richard A. Clarke, former Deputy National Security Advisor Lt. Gen. Donald Kerrick and former assistant general counsel at the CIA Suzanne Spaulding, acknowledges that the "sunset of the Protect America Act (PAA) does not put America at greater risk."
These intelligence professionals note that "[t]elecommunications companies will continue to cooperate with lawful government requests, particularly since FISA orders legally compel cooperation with the government," and find it unclear that "the immunity debate will affect our surveillance capabilities," as McConnell had asserted. Contrary to the Bush Administration's dire claims, the letter notes that the "intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication."
NO IMMUNITY. That should be the rallying cry of everyone who gives a shit. It cannot and should not happen, ever. These lawsuits must go forward and we must know what was done in our name to spy on Americans. The only way to go forward is to reveal what was done, come clean about it, let the trials happen, let the guilty be tried as well, and trust in the rule of law.
And, as if this needs to be said, we should never tolerate fearmongering, crying wolf, or plain basic lying designed to incite fear of terrorist attack. We need our intelligence agencies to operate as transparently as possible and without politicizing their mission:
Q: Even if it's perception, how do you deal with that? You have to do public relations, I assume.
A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we're doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.
Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?
A. That's what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it's a democratic process and sunshine's a good thing. We need to have the debate. The reason that the FISA law was passed in 1978 was an arrangement was worked out between the Congress and the administration, we did not want to allow this community to conduct surveillance, electronic surveillance, of Americans for foreign intelligence unless you had a warrant, so that was required. So there was no warrant required for a foreign target in a foreign land. And so we are trying to get back to what was the intention of '78. Now because of the claim, counterclaim, mistrust, suspicion, the only way you could make any progress was to have this debate in an open way.
I think the intention of the FISA law was to keep the Executive Branch from abusing its powers, and not to give cover to the Republican Party thirty years after the fact, but I'm funny that way. I pay attention. Telling the American people that they're going to die--your Republican Party in action.
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