Administration official says 'every nugget' of surveillance info helps terrorists
Defending the Bush administration's efforts to immunize telecommunications companies from any responsibility for their assistance in the likely illegal surveillance of Americans after 9/11, a top national security official said any discussion of US surveillance efforts aids terrorists.
"Every nugget of information that comes out in the course of these investigations helps our enemies," Assistant Attorney General Kenneth L. Wainstein, who oversees the Justice Department's national security division, said Wednesday on Capitol Hill. Wainstein was testifying to the Senate Judiciary Committee, which is considering legislation to update a foreign surveillance law.
A key sticking point in the debate over the government's surveillance authority is whether the updated law will provide legal immunity to telecommunications companies that facilitated the National Security Agency's warrantless eavesdropping on Americans' phone calls. President Bush authorized the emergency surveillance, which proceeded without court oversight, immediately after Sept. 11, but many of the program's details remain unknown.
The administration's immunity proposal would invalidate more than three dozen lawsuits alleging that telephone and internet providers violated customers' privacy when they handed the government access to their networks without legal justification.
Wainstein said the lawsuits filed against companies like AT&T and Verizon should not move forward in court because of the classified nature of the program in question; if people are seeking redress, any lawsuits should be directed at the government, he said.
Sen. Arlen Specter (R-PA), the ranking Republican on the committee, was skeptical as to why telecommunications companies deserve protection from the suits, and he asked why the government couldn't just indemnify the companies from paying any damages that could be rewarded.
"If we are to close the courthouse door to some 40 litigants who are not claiming their privacy was violated, it seems to me that we are closing a major avenue of redress," Specter said. A complete lack of discussion of the program, which the administration seems to be inviting, "is just an open invitation for this kind of conduct in the future."
Wainstein seemed to argue that the lawsuits' very existence served as another weapon in al Qaeda's arsenal.
Anything that keeps the lawsuits alive "exposes information about sources and methods," the witness said. "Even just the filing of lawsuits and allegations made [in them] ... can compromise sources and methods."
Specter was incredulous at such a broad claim.
"Oh really?" the Pennsylvania Republican shot back. "If [plaintiffs filing the suits] know something it must be in the public domain."
The Judiciary Committee shares jurisdiction over surveillance laws with the Select Committee on Intelligence, which reported its own legislation earlier this month that would grant immunity to telecoms alleged to have participated in the program.
Administration finally hands over wiretap docs
Chairman Patrick Leahy (D-VT) said he would not even consider a bill granting immunity until committee members saw the secret justifications. Whether the provision remains in the bill remains unclear, but Leahy pressed Wainstein on why immunity is even necessary if -- as the administration continues to claim -- the warrantless wiretapping was legal to begin with.
He charged that the government was more interested in avoiding oversight and accountability and he said lawsuits against the telecoms are the only recourse for citizens seeking answers about whether the administration overstepped the Constitution.
"If we give blanket amnesty to the companies, you're not going to be able to sue the government," Leahy said. "They're going to be able to provide their own amnesty by saying 'state secrets.'"
Wednesday's hearing served as something of a refresher for the committee. Wainstein and Director of National Intelligence made the rounds of House and Senate committees to testify on the FISA updates in February.
Leahy has the option of producing his own bill that would eliminate the telecom immunity. A Judiciary Committee aide says he has not drafted new legislation, but Leahy has not ruled out the possibility either.
A House measure to update FISA was pulled from the floor earlier this month when Republicans introduced a politically charged but ultimately meaningless motion that would have killed the bill, which did not grant immunity to telecoms.
House leaders are working to bring the measure, known as the RESTORE Act, back to the floor soon, and an aide to a progressive House Democrat tells RAW STORY that it is "unlikely" that telecom immunity will be put back in the bill.
Before Congress recessed in August, lawmakers rushed through a temporary FISA update that critics say provides too little court oversight to protect Americans' rights. That law, the Protect America Act, expires in February, and Congressional leaders have said they will send a bill for President Bush to sign before that deadline.
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