JIM LEHRER: Next, the continuing impasse over legislation to reauthorize the federal wiretapping program. The president charged today the holdup in the House is threatening national security. Many Democrats in Congress disagree.
The key issue or a key issue is legal immunity for telecom companies that participated in warrantless electronic surveillance for the government after 9/11. The Senate has already passed legislation agreeable to the administration.
Caroline Fredrickson is director of the Washington legislative office of the American Civil Liberties Union. Philip Bobbitt is professor of law and director of the Center for National Security at Columbia University and currently at the Strauss Center for International Security and Law at the University of Texas at Austin.
Now, Professor Bobbitt, you support immunity for the telecom companies, is that correct?
PHILIP BOBBITT, Center for National Security at Columbia University: That’s right.
JIM LEHRER: Why?
PHILIP BOBBITT: You want to think not so much about the past, about punishing the telecoms for something that’s already happened. It is about the future.
How can you, in thinking of an unanticipated emergency, take steps that will maximize the cooperation not just of telecoms, but of the private sector generally? That’s the objective.
It’s not about punishing corporate America. It’s about securing cooperation at a time when you need it, in circumstances you really can’t anticipate.
JIM LEHRER: And in this case…
PHILIP BOBBITT: So that’s why.
JIM LEHRER: In this case, these telecom companies were asked by the federal government to do what they did, correct?
PHILIP BOBBITT: They acted in good faith. There were good reasons to think that the statute might not actually have covered these circumstances because the technology has changed so much.
And, remember, also, that not all of the companies complied. If they, in those circumstances, didn’t all comply with the government’s request, you could only imagine what the situation would be if they were facing liability.
JIM LEHRER: Now, Ms. Fredrickson, are there lawsuits pending against some of these telecom companies?
CAROLINE FREDRICKSON, American Civil Liberties Union: Yes, there are. There are almost 40 lawsuits pending.
JIM LEHRER: And what are they charging the telecom companies with?
CAROLINE FREDRICKSON: Well, there are a variety of allegations, but primarily the issue is that the telecommunications companies turned over customer records to the NSA, to the government, without the appropriate…
JIM LEHRER: That’s the National Security Agency.
CAROLINE FREDRICKSON: … the National Security Agency, without the appropriate legal certifications that are required under the Foreign Intelligence Surveillance Act.
JIM LEHRER: But what are they being sued for? Are they being sued for damages? Is it a criminal case? What is it that these…
CAROLINE FREDRICKSON: No, it’s for civil damages.
JIM LEHRER: Civil damages.
CAROLINE FREDRICKSON: It’s for civil damages, although some of the lawsuits, including one of the ACLU lawsuits, is merely for injunctive relief, to stop this type of behavior from going forward.
Holding telecoms accountable
JIM LEHRER: Now, why do you believe the companies should not be given immunity from these lawsuits?
CAROLINE FREDRICKSON: Well, I think one of the important points is that the House leadership has actually put together a good proposal, and that would allow the cases to go forward, but telecommunications companies could make their case to a court in secret proceedings, without the plaintiffs present, to show why they believe they complied with legal process.
So they could have their day in court, but the plaintiffs could also have their day in court. And that's the primary argument that the telecommunications companies have been making.
They've said that the administration will not allow them to make their case, to give their side of the argument, because the administration has been asserting the state secrets doctrine to cut off these cases at the knees.
JIM LEHRER: What about that, Professor Bobbitt? Would that be a compromise that you could live with?
PHILIP BOBBITT: I don't think so. I mean, I just don't think the principal interest here that we should focus on are the interests of the corporations or the interests of the plaintiffs and the plaintiffs' bar.
The main thing we want to focus on is the national interest, not about what's happened, not about making their day in court and hashing it out, but about the future.
Remember, 95 percent of all defense communications in this country go across the public-switched network. That's a private network. We don't have a state system of telecommunications as they do in Britain or France or Germany.
And I think what you want to do is lift your sights a bit from the lawsuit and the litigation surrounding it and the two civil parties and instead think about the future. Think about what will happen when we have an emergency again, and we go to these companies, and we try to get them to cooperate.
JIM LEHRER: Why not just move on, Ms. Fredrickson? What would be the harm?
CAROLINE FREDRICKSON: Well, I think what Professor Bobbitt is overlooking is that the telecommunications companies have complied, have turned over information when presented with appropriate legal process since FISA was passed, since the Foreign Intelligence Surveillance Act was passed.
This has been part of their doing business. They know how to comply. They know what the appropriate legal process is.
And I think, if we look back and understand why Congress passed FISA initially, it was because rule of law is what is in our national interest. It is clear that we need to have companies and a government that abide by the law, that respect the Constitution, and that keep us safe in line with the law, and not with simply the whim of the administration.
Legal, constitutional authority
JIM LEHRER: What about that, that at least it should be up to the judges to decide this, not the administration, Professor Bobbitt?
PHILIP BOBBITT: Well, I think it's a little circular. It's assuming that the law is as the plaintiffs think it is.
But the most important thing here is not removing judicial scrutiny. I think judicial scrutiny is crucial. It isn't appropriate, however, as a preface to this kind of target acquisition.
We should have judicial scrutiny, but it makes much more sense not to have it in the context of civil litigation and not to have it in advance of the acquisition of intelligence, but rather to see that, just as Ms. Fredrickson suggests, to see that the government is obeying its rules.
It isn't enough just to say, "We have to obey rules," when we're in the midst of revising those rules right now, in fact, even tonight on the floor of the House.
JIM LEHRER: And what's your response to that?
CAROLINE FREDRICKSON: Well, I think the House bill actually answers that point, because it provides for prospective immunity, as FISA has, when there is appropriate legal process.
Again, when the companies are asked to turn over records and the government has complied with the law, checks and balances, and I think that has worked very well and the telecommunications companies have not ceased to cooperate.
The administration tried to make the argument when the Protect America Act expired a couple of weeks ago that there would be an intelligence gap. Well, they had to come back and say that, no, in fact, the telecommunications companies were continuing to participate, continuing to provide information, just as they have in the 30 years of FISA's existence.
JIM LEHRER: So what about that, Professor? And there's been no change, according to Ms. Fredrickson. Everything is going on, just they were doing it before.
PHILIP BOBBITT: Well, we know that Verizon cooperated the last time, and we know that Qwest refused to.
You can't simply say that a law sitting in a context so dramatically changed technologically shall freeze how these companies will act in the future. That's really not realistic. You don't want to bind yourself now by imposing liability to a situation that may very well change in an emergency or in some unanticipated condition.
Just put aside for a second the current legal rules. Let's assume those rules are going to change, as we all believe they will. But assume that a situation occurs that hasn't been anticipated by those rules.
If we impose retrospective liability, what is your guess about how the companies and their general counsels will react?
JIM LEHRER: How about that, retrospective liability, and what will the impact of doing that on all -- not just telephone companies, but all companies?
CAROLINE FREDRICKSON: I think Professor Bobbitt is missing the main point. We're not imposing retroactive liability. What we're doing is allowing lawsuits to go forward.
And as he pointed out, several of the companies declined to participate; that raises questions about why. Because there is a compulsion to participate under the law if there's appropriate legal process.
They did not participate most likely because they thought that what they were getting was a request to do something illegal. And I think we should all be frightened by the prospect that our government doesn't have to abide by the laws that Congress passes to keep our Constitution intact.
Detailing surveillance suits
JIM LEHRER: Just to go back to something I asked before, I'm not sure I understood correctly what you were saying. What is it that these lawsuits, the retrospective -- in other words, the lawsuit that's filed against a telecom company for what it did, say, in 2001, what is the purpose of that lawsuit? What is it they want to get from -- the people suing the companies, what is it they want?
CAROLINE FREDRICKSON: Well, ultimately, they want accountability. They want...
JIM LEHRER: No, but, I mean, how does that -- accountability, what does that mean?
CAROLINE FREDRICKSON: Well, in some cases, that can be damages.
JIM LEHRER: OK.
CAROLINE FREDRICKSON: Some of the cases look for damages, but others are looking for...
JIM LEHRER: And the plaintiffs would be whom?
CAROLINE FREDRICKSON: The plaintiffs are a variety of customers of the different communications companies that have been sued, from AT&T and Verizon to others.
JIM LEHRER: And they're suing for damages on the basis that their privacy was violated illegally?
CAROLINE FREDRICKSON: Yes. Yes.
JIM LEHRER: What's wrong with that, Professor Bobbitt? Why shouldn't these people have a right to sue and get damages, if the court system allows it?
PHILIP BOBBITT: Well, that's the question: Should we allow it? And there are many interests involved here.
Of course, if people's privacy was violated, perhaps there should be some way of compensating it. Indeed, Congress could do that.
But, again, just to sort of belabor this point, I wish we could raise our sights a little bit and try and anticipate the future, try and look to those very difficult times that we really can't sort out right now in the midst of such technological change.
And imagine the time when, for good reasons and good faith, we go to private companies and say, "The law is kind of murky here. Your general counsel says you shouldn't comply; some general counsels have already said they will. But we need your help."
Do we want to make it easier or harder? Do we want to maximize the chances of cooperation or do we want to qualify them? I think that's really the basic question here.
JIM LEHRER: All right, and I now understand the argument. Thank you both very much.
CAROLINE FREDRICKSON: Thank you.
PHILIP BOBBITT: Thank you for inviting me.