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It’s the sort of advocacy money can’t buy: At a hearing on the Foreign Intelligence Surveillance Act last week, National Intelligence Director Michael McConnell bluntly told the Senate Judiciary Committee that a flurry of privacy lawsuits against telecom companies poses a threat to national security. “You’re up here lobbying us to wipe out these cases retroactively by legislation,” committee Chairman Patrick Leahy (D-Vt.) responded. “I reject the word lobbying,” McConnell said testily, describing immunity for the telecoms as “what I need to do my job.” Both men had a point. Amid the larger questions of Fourth Amendment rights and national security in the debate over changes to FISA, telecoms have entrusted the defense of their alleged role to the intelligence and Justice officials whose warrantless requests for customer records landed them in hot water in the first place. In the face of catastrophically sized damage claims, the industry has remained largely silent. Asked last week about efforts to promote retroactive immunity to lawsuits, Verizon declined to comment. AT&T issued a statement reading “AT&T is fully committed to protecting our customers’ privacy. We do not comment on matters of national security.” It’s the exact same no-comment that the phone giant has used for months. The executive branch has more than picked up the public slack, with figures like Kenneth Wainstein, who heads the Justice Department’s National Security Division, urging immunity as the only way to prevent vital intelligence secrets from being bandied about in a public courtroom. And along with playing the national security card, intelligence officials have defended the telecoms on patriotic and moral grounds. “It’s sort of a general fairness issue,” Wainstein told Legal Times last week. “[Y]ou are going to get hauled into court, face expensive litigation, and face crushing liability � all for having helped the government?” Intelligence officials’ willingness to take heat for the companies is an inversion of the approach the executive branch normally takes to handling congressional inquiries, says retired Rep. Bob Barr (R-Ga.), who testified Sept. 5 before the House Judiciary Committee against warrantless surveillance. “Normally, it’s the industry out in front so the administration can keep its hands clean,” he says in an interview. But a laconic public face doesn’t mean that the companies haven’t mounted a more impassioned defense on Capitol Hill. A congressional official with knowledge of a committee addressing FISA issues described a “low key but forceful” effort by the telecoms to push immunity with key members and staff. “The companies’ principal argument for immunity is that �we can’t defend ourselves in lawsuits because the government won’t allow [us] to,’” says the staffer, who requested anonymity because he was not speaking for the committee. Lawmakers, he says, are sympathetic to that plight. But he also sees little chance that the phone companies will get immunity solely by playing as victims of circumstances, or because intelligence and Justice officials bully Congress into waiving liability without a clear understanding of what the companies have done. “They can’t publicly lobby for something, but not explain why they want it,” he says, describing McConnell’s recent statement that congressional review could imperil American lives as “insulting.” A number of telecom lobbyists identified as working on the issue by civil liberties and electronic freedom groups either did not return calls or declined to speak about their involvement. Tim Sparapani, an ACLU senior legislative counsel, described the companies’ effort as extremely broad and drawing on almost all of D.C.’s white-shoe firms specializing in telecommunications. He knows this, Sparapani says, because a year ago, the ACLU tried to partner with such a firm itself. “Any firm with a lobbying presence, with any sort of legal might to bring claims at the state level and federal level, virtually all of them conflicted out,” he says, declining to name the specific attorneys the ACLU contacted. While the issue of financial � and potentially criminal � liability may be the driving force for the telecom companies, Sparapani says, groups like his have been more focused on the future of FISA and forcing disclosure of what actually took place than making the companies pay. Still, opposing the retroactive immunity has kept the ACLU’s hands full, he adds. Over the last year, there have been at least five attempts to insert telecom immunity into unrelated legislation, such as appropriations bills or legislation restricting the practice of pretexting. So far, it’s been caught and stripped. “We have had to beat it back in any number of ways,” he says.
Jeff Horwitz can be contacted at [email protected]. Senior Reporter Pedro Ruz Gutierrez contributed to this article.

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