[Infowarrior] - Terror Watch: A Secret Lobbying Campaign

[Richard Forno]

Terror Watch: A Secret Lobbying Campaign
The secret lobbying campaign your phone company doesn't want you to know
about
WEB EXCLUSIVE
By Michael Isikoff and Mark Hosenball
Newsweek
Updated: 7:00 a.m. ET Sept 20, 2007

Sept. 20, 2007 - The nation¹s biggest telecommunications companies, working
closely with the White House, have mounted a secretive lobbying campaign to
get Congress to quickly approve a measure wiping out all private lawsuits
against them for assisting the U.S. intelligence community¹s warrantless
surveillance programs.

The campaign‹which involves some of Washington's most prominent lobbying and
law firms‹has taken on new urgency in recent weeks because of fears that a
U.S. appellate court in San Francisco is poised to rule that the lawsuits
should be allowed to proceed.

If that happens, the telecom companies say, they may be forced to terminate
their cooperation with the U.S. intelligence community‹or risk potentially
crippling damage awards for allegedly turning over personal information
about their customers to the government without a judicial warrant.

³It¹s not an exaggeration to say the U.S. intelligence community is in a
near-panic about this,² said one communications industry lawyer familiar
with the debate who asked not to be publicly identified because of the
sensitivity surrounding the issue.

But critics say the language proposed by the White House‹drafted in close
cooperation with the industry officials‹is so extraordinarily broad that it
would provide retroactive immunity for all past telecom actions related to
the surveillance program. Its practical effect, they argue, would be to shut
down any independent judicial or state inquires into how the companies have
assisted the government in eavesdropping on the telephone calls and e-mails
of U.S. residents in the aftermath of the September 11 terror attacks.

³It¹s clear the goal is to kill our case," said Cindy Cohn, legal director
of the Electronic Frontier Foundation, a San Francisco-based privacy group
that filed the main lawsuit against the telecoms after The New York Times
first disclosed, in December 2005, that President Bush had approved a secret
program to monitor the phone conversations of U.S. residents without first
seeking judicial warrants. The White House subsequently confirmed that it
had authorized the National Security Agency to conduct what it called a
³terrorist surveillance program² aimed at communications between suspected
terrorists overseas and individuals inside the United States. But the
administration has also intervened, unsuccessfully so far, to try to block
the lawsuit from proceeding and has consistently refused to discuss any
details about the extent of the program‹rebuffing repeated congressional
requests for key legal memos about it.

"They are trying to completely immunize this [the surveillance program] from
any kind of judicial review,² added Cohn. ³I find it a little shocking that
Congress would participate in the covering up of what has been going on."

But congressional staffers said this week that some version of the proposal
is likely to pass‹in part because of a high-pressure lobbying campaign
warning of dire consequences if the lawsuits proceed. Director of National
Intelligence Mike McConnell seemed to raise the stakes recently when he
contended in an interview with the El Paso Times that the private lawsuits
could ³bankrupt these companies.²

Among those coordinating the industry¹s effort are two well-connected
capital players who both worked for President George H.W. Bush: Verizon
general counsel William Barr, who served as attorney general under 41, and
AT&T senior executive vice president James Cicconi, who was the elder Bush's
deputy chief of staff.

Working with them are a battery of major D.C. lobbyists and lawyers who are
providing "strategic advice" to the companies on the issue, according to
sources familiar with the campaign who asked not to be identified talking
about it. Among the players, these sources said: powerhouse Republican
lobbyists Charlie Black and Wayne Berman (who represent AT&T and Verizon,
respectively), former GOP senator and U.S. ambassador to Germany Dan Coats
(a lawyer at King & Spaulding who is representing Sprint), former Democratic
Party strategist and one-time assistant secretary of State Tom Donilon (who
represents Verizon), former deputy attorney general Jamie Gorelick (whose
law firm also represents Verizon) and Brad Berenson, a former assistant
White House counsel under President George W. Bush who now represents AT&T.

Because of the extreme secrecy surrounding the warrantless surveillance
program, few if any of the lobbyists and lawyers  are prepared to speak
publicly about their role. ³My client requires me not to talk to the press,²
said the normally loquacious Black when asked by NEWSWEEK about his lobbying
for AT&T. Berman and Berenson also declined comment. Gorelick confirmed that
she is providing "strategic advice," not lobbying for Verizon. Coats and
Donilon did not respond to requests for comment.

But according to three industry sources, these and other players have been
conferring with each other over legislative strategy and targeting key
lawmakers and staffers, especially those on the House and Senate
Intelligence and Judiciary Committees. The lobbyists have set up meetings
and arranged conference calls, pressing the argument that failure to provide
protection to the companies could interfere with the vital assistance they
say the telecom industry has provided the intelligence community in
monitoring the communications of Al Qaeda and other terrorist operations
overseas.

The case for new legislation retroactively giving telecoms companies
protection against private lawsuits‹including lawsuits already pending‹was
outlined this week by Kenneth Wainstein, assistant attorney general for
national security. At a House Judiciary Committee hearing chaired by Rep.
John Conyers, a Michigan Democrat, Wainstein said that giving telecoms
companies retroactive liability was a matter of "general fairness."

"I think it's sort of fundamentally unfair and just not right to‹if a
company allegedly assisted the government in its national-security efforts,
in an effort to defend the country at a time of peril, that they then get
turned around and face tremendously costly litigation and maybe even
crushing liability for having helped the United States government at a time
of need ... it's just not right," Wainstein testified.

Wainstein also claimed that "every time we have one of these lawsuits, very
sensitive information gets discussed and gets leaked out, disseminated out
in the public. And our adversaries are smart, both the terrorists who might
be over in, you know, someplace in the Middle East are smart, and then the
governments that might be our adversaries are tremendously sophisticated,
and they're gleaning all this information that gets out." Wainstein also
said that a telecom company's overseas assets could be threatened if its
collaboration in U.S. espionage efforts were confirmed in a court case.

The campaign for industry protection was initially launched last summer when
administration and industry officials first tried to get the immunity
provision included in the Protect America Act‹a measure passed by Congress
and signed by President Bush on Aug. 5 that allowed the surveillance program
to continue and temporarily gave the National Security Agency expanded
eavesdropping powers. At the time, Democrats in Congress balked at including
the kind of sweeping retroactive civil immunity protections that the
industry sought.

But then, on Aug. 15, a three-judge panel of the Ninth Circuit Court of
Appeals in San Francisco heard oral arguments in a Justice Department motion
to block the Electronic Frontier Foundation lawsuit against AT&T. More than
40 other civil suits filed against the telecoms‹many of them seeking
billions of dollars in damages‹had been consolidated with the EFF lawsuit.
But the Justice Department had sought to block the lawsuits under the ³state
privilege² doctrine, which can require the dismissal of suits that might
endanger national security.

The three-judge panel, made up entirely of Democratic appointees, seemed
openly skeptical of the Justice Department¹s arguments, prompting many court
observers to conclude that the panel was likely to issue a ruling permitting
the lawsuits to proceed. At one point in the proceedings, one of the judges,
Harry Pregerson, a Jimmy Carter appointee, appeared annoyed with the Justice
Department lawyer, Gregory Garre. The judge wanted Garre to provide direct
answers to questions about the scope of the just-passed surveillance law,
according to press reports. When Garre tried to explain that the law was
complicated, Pregerson shot back: ³Can¹t be any more complicated than my
phone bill.²

The administration is keeping up pressure on Congress for quick action on
the new version of the surveillance law‹including an immunity provision for
telecoms‹which will take effect when the Protect America Act expires early
next year. Congressional staffers say that Democrats are likely to go along
with some version of the proposal. But Democratic leaders, who say they were
stampeded into passing the law last summer, are insisting on having more
thorough hearings and forcing the administration to turn over documents on
the surveillance program. If the telecoms want immunity, some Democrats say,
the White House should at least say what it is they need immunity for.

URL: http://www.msnbc.msn.com/id/20884696/site/newsweek/