President Bush, Lawmakers Clash Over Renewal of Surveillance Program

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.