FBI chief: Lack of legal shield won't halt telecom spy partnerships

Congress so far has refused to immunize companies that may have helped the NSA illegally. FBI director says lack of protection is a "disincentive" but won't kill partnerships.

WASHINGTON--As Congress debates whether to wipe out lawsuits accusing telephone companies of allegedly illegal wiretaps, the Bush administration has argued such cooperation is key to keeping Americans safe from terrorists.

Robert Mueller
Robert Mueller FBI

FBI Director Robert Mueller continued that push on Wednesday, but he wouldn't go so far as to say those "private partners" would stop installing requested wiretaps unless certain legal protection is granted.

To some extent, Mueller is stating the obvious: Federal law requires telephone and Internet companies to comply with lawful wiretap court orders or lawful certifications from the attorney general, with stiff penalties for noncompliance. But Mueller said in various ways that he was concerned that lack of retroactive liability protection would harm the government's "relationships" with telephone companies -- which seems to leave in doubt whether all of the administration's requests were legal.

The seemingly reluctant admission came during pointed questioning by Sen. Arlen Specter (R-Penn.) at a Senate Judiciary Committee hearing. Specter, the committee's ranking member, has proposed an amendment--which has so far been unsuccessful--to a controversial spy law update that would allow lawsuits alleging illegal spying by telephone companies to continue, except with government lawyers substituted in the companies' place.

FBI Director Robert Mueller said he disagreed with that approach, arguing it would provide a "disincentive" for communications companies to team up with federal terrorism investigations.

Then the following exchange ensued:

Specter: A disincentive, OK, but do you think they would stop?
Mueller: I think it is a disincentive...
Specter: But do you think they would stop?
Mueller: I think it would hamper our relationships, yes.... I do think it would hinder our relationships.
Specter: Disincentive, hamper, hinder, but I don't hear you say it would stop....
Mueller: I'm not going to say it's going to stop, but I do believe delay is detrimental to the safety of the country. Delay and lack of clarity, lack of simplicity guiding our relationships inhibits our ability to get the information we need on a daily basis.

The Senate has already passed a bill that would provide so-called retroactive immunity to telephone companies that have been the subject of lawsuits filed between the September 11 attacks and a January 2007 date when the attorney general submitted a once-secret National Security Agency surveillance program for court review. The bill would also provide such immunity going forward and wipe out state-level investigations of possible improprieties.

The House of Representatives refused to take up that bill before a temporary spy law expansion expired February 16 but is reportedly working on a compromise that it originally hoped to bring to a vote this week. At issue is broader modernization of a 1978 law called the Foreign Intelligence Surveillance Act, or FISA, which requires government agents to obtain a court order before gathering intelligence information from conversations that may include U.S. persons.

Later on Wednesday, however, House Majority Leader Steny Hoyer (D-Md.) said a bill won't be on the floor Thursday as predicted, according to a transcript of a briefing for reporters. He said further decisions about how to proceed won't likely be made until late this week or early next week.

"We have said all along, and we continue to believe, that the existing FISA statute authorizes the intelligence community to seek such authority as it needs to act to intercept such communications as it believes are relevant and gives to the telecommunications company the appropriate protections that it needs, so that we believe that the existing law will allow the administration to accomplish what it needs to do," Hoyer said. "However, we do believe that the existing law ought to be modernized, and we are working on that."

Mueller urged passage of the Senate bill with the immunity provisions. By way of defending that suggestion, he said he's not aware of any instance when telecommunications companies have "acted irresponsibly" and that, furthermore, "they are most knowledgeable about the information kept in their databases and how to utilize the software they have developed themselves in order to be responsive."

"We need the active participation of telecommunications carriers more than we have in the past because of the advent of various means of communicating, whether it be cell phones or e-mails, in addition to the advent of regular telephones," the FBI director went on.

Sen. Patrick Leahy (D-Vt.), the Judiciary Committee's chairman, argued that the only time that federal authorities have found wiretaps cut off was owed to their own negligence. He said he was "astonished" by a Justice Department report issued earlier this year that revealed that telephone companies had shut off bureau-initiated wiretaps--including at least one related to suspected terrorists--because the agency had failed to pay $66,000 in bills.

"This is yet another example of the kind of incompetence that plagued the administration's actions in the aftermath of Katrina," Leahy said. "It is unacceptable."

Mueller said the bureau has since put in place "mechanisms to make sure all the bills are paid on time" and downplayed the effect of the wiretap lapses, which he said occurred in only two instances and lasted just a few days. The effect on those investigations, he said, was "minimal at best."

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