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Bush Moves to Shield Telecommunications Firms
The dispute involves the Protect America Act, a temporary law that broadened the government's powers to spy on some Americans without warrants but expired on Feb. 16. The administration backs the Senate bill, which would renew the law and add immunity for the telecommunications firms; House Democratic leaders have balked, leading to two weeks of partisan squabbling.
The administration asserts that without immunity, companies may refuse to cooperate with vital surveillance efforts in the future for fear of being sued. But the administration's preferred bill is also backward-looking: It provides legal protections for company acts after the September 2001 attacks.
Whether such protections are actually needed is unclear. The companies and the government say they are, because the companies were acting in good faith to comply with national security-related requests but cannot defend themselves in open court, whereas the plaintiffs assert that the companies already have immunity for any actions pursuant to a valid government order.
All discovery has been blocked so far by the administration's argument, still awaiting court resolution, that the suits are barred because they involve state secrets. What tantalizing clues about the surveillance have emerged so far have come from affidavits entered into the record by the plaintiffs.
If the AT&T case is allowed to proceed, for example, the plaintiffs will ask a judge to consider documents provided by a former AT&T technician, Mark Klein, that suggest a massive effort by the National Security Agency to tap into the backbone of the Internet to retrieve millions of e-mails and other exclusively domestic communications.
The government, in a brief before the U.S. Court of Appeals for the 9th Circuit in San Francisco, has denied the existence of any "dragnet" surveillance program. In the cases against the telecommunications firms, Justice Department attorneys have argued that merely to confirm or deny any "intelligence" relationship with AT&T or any company "could reasonably be expected to cause exceptionally grave damage to the national security."
Though the carriers have argued that they are barred from defending themselves against the allegations because of the government's invocation of the state-secrets privilege, at least one carrier, Verizon, has stated in regulatory filings that the cases against it are without merit.
There are also three separate surveillance-related lawsuits against the Bush administration itself that would not be stopped by either the House or Senate legislation. Though all three question the legality of the surveillance, these cases might be stopped by the courts because government officials enjoy a qualified immunity protection that the phone companies do not.
The companies themselves, including AT&T, Verizon and others, have said little publicly about the debate, citing concerns over the ongoing litigation and state secrets. However, the companies have brought senior executives into town to meet with the few lawmakers who have been briefed in detail on the government's surveillance programs.
Last fall, former attorney general John D. Ashcroft signed a letter to top members of the Senate Judiciary Committee urging retroactive immunity for the companies. His consulting firm, the Ashcroft Group, was on retainer to AT&T at the time. An Ashcroft spokeswoman declined comment.
Staff writer Jeffrey H. Birnbaum and staff researcher Julie Tate contributed to this report.