Listening In

Without protection against lawsuits, are the telecoms less willing to cooperate with government spying efforts?
By Mark Hosenball
Newsweek Web Exclusive
Updated: 5:39 PM ET Feb 22, 2008

It's been barely a week since the Democratic-controlled Congress allowed a temporary electronic spying law to lapse. But U.S. intelligence agencies are already encountering problems maintaining and expanding vital operations, the Bush administration claims.

In a letter sent late on Friday to House Intelligence Committee Chairman Silvestre Reyes, National Intelligence Director Mike McConnell and Attorney General Michael Mukasey claimed that in the six days since the temporary law expired, some "partners" in intelligence operations have "reduced cooperation." According to two government officials, who asked for anonymity when discussing sensitive material, the "partners" referred to in the letter are (unnamed) U.S. telecommunications companies, who-with administration backing-have been aggressively lobbying Congress for a controversial clause in new electronic spying legislation. The clause would effectively wipe out a series of private lawsuits seeking damages against the telecoms for their cooperation with what civil libertarians and administration critics claim was an illegal expansion of electronic spying against targets inside the U.S.-an expansion authorized by President Bush in the wake of the 9/11 attacks.

In their letter, McConnell and Mukasey claim that since the so-called Protect America Act lapsed, partners "have delayed or refused compliance with our requests to initiate new surveillances of terrorist and other foreign intelligence targets under existing directives issued pursuant to the Protect America Act."

The letter continues: "Although most partners intend to cooperate for the time being, they have expressed deep misgivings about doing so in light of the uncertainty and have indicated that they may well cease to cooperate if the uncertainty persists."
Mukasey and McConnell say that they are currently "working to mitigate these problems and are hopeful that our efforts will be successful." But they add that unless Congress passes a version of a new electronic surveillance bill, approved by the Senate, which includes the controversial retroactive lawsuit immunity for telecom companies, "the broader uncertainty caused" by the temporary spy law's expiration "will persist." The letter adds that: "This uncertainty may well continue to cause us to miss information that we otherwise would be collecting."

The letter amounts to a stepping-up of pressure on Democrats in Congress--and in the House in particular--to pass a surveillance bill to the liking of the White House and the telecom industry.

A majority in the Senate, with the backing of Democratic Senate Intelligence Committee chair Jay Rockefeller, approved a bill which would extend many provisions of the electronic surveillance law that recently expired. That legislation, which was opposed by a small group of liberal senators, would also give the telecoms the retroactive immunity they are seeking.

The administration and the Senate majority pressured the House to go along with the Senate bill. But the House approved a version which contained additional civil-liberties protections-and omitted any retroactive immunity for the telecoms. That left Congress deadlocked; the White House has indicated President Bush will veto any version of a new surveillance law that does not include the immunity provision.

The letter from Mukasey and McConnell does not spell out precisely what kind of new intelligence operations are being thwarted because of the congressional impasse. And administration critics, including Rep. Reyes, have recently accused the administration and its supporters of exaggerating the threat to current intelligence activities caused by the congressional standoff.

Administration critics note that eavesdropping operations undertaken under the intel law which just lapsed are allowed to continue for 12 months after they were first authorized. However, administration officials claim the telecoms are nervous that the situation leaves them with insufficient protection against new private lawsuits.

In a statement released late Friday, Reyes, Rockefeller and several other Democrats lashed out at the White House's tactics. "Further politicizing the debate, the administration today announced that they believe there have been gaps in security since the Protect America Act expired. They cannot have it both ways; if it is true that the expiration of the PAA has caused gaps in intelligence, then it was irresponsible for the President and congressional Republicans to openly oppose an extension of the law. Accordingly, they should join Democrats in extending it until we can resolve our differences."