[Infowarrior] - Telcos, WH collaborated on domestic surveillance lobbying

[Richard Forno]

Just Between Us

Telecoms and the Bush administration talked about how to keep their
surveillance program under wraps.
Michael Isikoff and Mark Hosenball
Newsweek Web Exclusive
Updated: 6:09 PM ET Apr 30, 2008

http://www.newsweek.com/id/134930/output/print

The Bush administration is refusing to disclose internal e-mails, letters
and notes showing contacts with major telecommunications companies over how
to persuade Congress to back a controversial surveillance bill, according to
recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of
a Freedom of Information Act lawsuit filed by a privacy group called the
Electronic Frontier Foundation. The foundation (alerted to the issue in part
by a NEWSWEEK story last fall) is seeking information about communications
among administration officials, Congress and a battery of politically
well-connected lawyers and lobbyists hired by such big telecom carriers as
AT&T and Verizon. Court papers recently filed by government lawyers in the
case confirm for the first time that since last fall unnamed representatives
of the telecoms phoned and e-mailed administration officials to talk about
ways to block more than 40 civil suits accusing the companies of privacy
violations because of their participation in a secret post-9/11 surveillance
program ordered by the White House.

At the time, the White House was proposing a surveillance bill‹strongly
backed by the telecoms‹that included a sweeping provision that would grant
them retroactive immunity from any lawsuits accusing the companies of
wrongdoing related to the surveillance program.

Although a version of this proposal has passed the Senate, it has so far
been blocked in the House by Democrats who are demanding greater public
disclosure about the scope of the administration's post-9/11 surveillance of
individuals inside the United States. Negotiations between House Democrats,
the Senate and administration representatives over a possible compromise
have made little progress so far. Capitol Hill officials now say Congress
may not get around to final action on new surveillance legislation until
right before a one-year temporary law expires in August‹right before the
presidential nominating conventions.

The recent responses in the Electronic Frontier Foundation lawsuit provide
no new information about the administration's controversial post-9/11
electronic surveillance program itself, but they do shed some light on the
degree of anxiety within the telecom industry over the litigation generated
by the carriers' participation in the secret spying. One court declaration,
for example, confirms the existence of notes showing that a telecom
representative called an Office of Director of National Intelligence (ODNI)
lawyer last fall to talk about "various options" to block the lawsuits,
including "such options as court orders and legislation." Another
declaration refers to a letter and "four fax cover sheets" exchanged between
the telecoms and ODNI over the surveillance matter. Yet another discloses
e-mails in which lawyers for the telecoms and the Justice Department "seek
or discuss recommendations on legislative strategy."

The declarations were filed in court by government lawyers only after U.S.
Judge Jeffrey White in San Francisco, who is overseeing the case, ordered
them to fully process the Electronic Frontier Foundation's FOIA request for
documents showing lobbying contacts by the telecoms. The government
initially resisted even responding to the FOIA request, but White found that
disclosure was in the public interest because it "may enable the public to
participate meaningfully in the debate over" the pending surveillance
legislation.

But while complying with the judge's order to confirm the existence of some
documents, administration officials have told the judge they cannot actually
disclose the documents themselves, in part because to do so would undermine
national security. Even to confirm the identity of any of the carriers with
whom administration officials have discussed the surveillance issue would
implicitly identify the carriers that participated in the program and
therefore "would provide our adversaries with a road map" that would help
them thwart surveillance against them, according to a court declaration
filed by Lt. Gen. Ronald L. Burgess, director of the ODNI's intelligence
staff.

Spokesmen for the Justice Department and ODNI today declined comment to
NEWSWEEK on the grounds that neither agency will talk about pending
litigation.

The revelation of the existence of the documents comes at a time when
Congress is bracing for what is expected to be a grueling summerlong debate
over the surveillance measure. Administration officials say that unless
Congress acts by this summer, existing court orders permitting surveillance
of suspected overseas terrorists will expire, threatening the U.S.
government's ability to keep track of potential plots against the homeland.
If new legislation is not enacted before the current stop-gap law expires,
Republicans may try to use this as an election issue against Democrats.

The debate over a new surveillance authorization is likely to be complicated
by figures showing sharp increases in the government's electronic
eavesdropping on U.S. citizens. One report filed with the office of the
administrator of the U.S. Courts shows that standard wiretaps approved by
federal and state courts jumped 20 percent last year, from 1,839 in 2006 to
2,208 in 2007. Later this week another report is expected to also show
increases in secret wiretaps and break-ins approved by the Foreign
Intelligence Surveillance Court (FISC) in terror and espionage cases. But
even these secret wiretaps and break-ins‹estimated to be about 2,300‹tell
only part of the story. They don't include other secret methods the
government uses to collect personal information on U.S. citizens.
URL: http://www.newsweek.com/id/134930
©  2008