In a February 5 article about a letter Attorney General Michael Mukasey and National Intelligence Director Mike McConnell sent to Senate leaders concerning amendments to a proposed Senate bill updating the Foreign Intelligence Surveillance Act of 1978 (FISA), the Associated Press uncritically reported Mukasey and McConnell's contention that "[p]rivate citizens who respond in good faith to a request for assistance by public officials should not be held liable for their actions." Mukasey and McConnell made that assertion in opposition to an amendment that would strip from the bill language granting telecommunications companies retroactive immunity to civil liability for their participation in the Bush administration's warrantless domestic wiretapping program. At no point did the article note the decision by a federal judge regarding the lawsuit, nor arguments congressional opponents of such immunity have made challenging the notion that the telecommunications companies acted in "good faith" or that their intentions were even relevant. Indeed, in one of the cases challenging the legality of a company's alleged cooperation with the wiretapping program, Hepting v. AT&T, Vaughn Walker, the federal district judge hearing the case, found, as part of his rejection of AT&T's claims of immunity, that, "based on the facts as alleged in [the] plaintiffs' complaint," AT&T "cannot seriously contend that a reasonable entity in its position could have believed" that it would be lawful for the company to cooperate with the government.
Similarly, in a December 17, 2007, floor statement opposing the grant of retroactive immunity, Sen. Russ Feingold (D-WI) said:
FEINGOLD: So this is not about whether the companies had good intentions or acted in good faith; it is about whether they complied with this statutory immunity provision, which has applied for 30 years. If the companies follow that law, they should get immunity. If they did not follow that law, they should not get immunity. A court should make that decision, not Congress. It is that simple.
Walker's decision has been appealed and is now pending before the 9th Circuit U.S. Court of Appeals, which heard arguments on the appeal on August 15, 2007.
The February 5 AP article by Lara Jakes Jordan, headlined "Bush threatens veto in surveillance laws," in its entirety:
President Bush threatened a veto Tuesday in the debate to update terrorist surveillance laws, assailing Democratic plans to deny protection from lawsuits for telecommunications providers that let the government spy on U.S. residents after the Sept. 11, 2001, attacks.
The threat came in a 12-page letter to Senate leaders from Attorney General Michael Mukasey and National Intelligence Director Mike McConnell. It was issued as lawmakers prepare to vote on legislation seeking to update a 1978 surveillance law without violating privacy rights.
"If the president is sent a bill that does not provide the U.S. intelligence agencies the tools they need to protect the nation, the president will veto the bill," wrote Mukasey and McConnell.
The letter was sent to Senate leaders and the top Democrats and Republicans on the Senate Judiciary and Intelligence committees.
Senate Majority Leader Harry Reid, D-Nev., said the letter was premature since there still isn't any legislation yet.
"It's a little early to have a veto threat," he said.
The existing surveillance law will expire Feb. 15. Bush has said he would resist extending it again.
After nearly two months of legislative wrangling, Reid announced the Senate would begin voting on amendments Wednesday. Debate began Tuesday evening.
The administration's veto threat was aimed at amendments that would bar retroactive immunity to phone companies and other telecom providers that have given the government access to e-mails and phone calls linked to people in the United States. Without the retroactive protections, the letter noted, telecom providers might be unwilling to help the government track down terror suspects in the future as they were asked to do in the days following the 2001 attacks.
"Private citizens who respond in good faith to a request for assistance by public officials should not beheld liable for their actions," Mukasey and McConnell wrote.
A bill already approved by the Senate Intelligence Committee "is not perfect," Mukasey and McConnell wrote. But since it provides the legal shields, they said they would support it if the amendments are dropped.
The Senate could vote on the surveillance bill and amendments this week.
Some 40 civil lawsuits have been filed against telecommunications companies. They carry with them a threat of crippling financial penalties, which the White House says could bankrupt the companies.
Congress has struggled to strike a balance between catching terrorists and improperly spying on U.S. residents since last summer, when it sought to update the 1978 Foreign Intelligence Surveillance Act. That law requires the government to get approval from a secret court when it seeks to electronically eavesdrop on suspected terrorists or spies in the United States. The law does not apply to government wiretaps on people outside the country.
Over the years, however, foreign communications have been routed through technology based in the United States -- raising the question of whether the government should have FISA court approval to listen in on those conversations. The bill being debated now seeks to resolve that issue.
Civil rights and privacy advocates say current law, which Congress approved in August in a hasty attempt to update the 1978 version, still allows the government to eavesdrop on Americans without court oversight. That law was set to expire Feb. 1 but was extended for two weeks as Congress works to hammer out a compromise.
The administration also rejected proposals to have the secret FISA court decide whether to give immunity to telecom firms, arguing that doing so could merely result in lengthy legal battles.
"It is for Congress, not the courts, to make the public policy decision whether to grant liability protection to telecommunication companies who are being sued simply because they are alleged to have assisted the government in the aftermath of the September 11th attacks," Mukasey and McConnell wrote.