WHO IS LYING? Myth/Facts about Retroactive Immunity and Attorneys

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Poll question: WHO IS LYING? Myth/Facts about Retroactive Immunity and Attorneys

EFF: Myth/Facts about Retroactive Immunity and Attorneys
February 25th, 2008
Myth/Facts about Retroactive Immunity and Attorneys
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Posted by Kurt Opsahl - http://www.eff.org/deeplinks/2008/02/myth-facts-about-retroactive-immunity-and-attorneys

Bush Administration Press Secretary Dana Perino stooped to a new low at today's White House press briefing, presenting numerous myths about trial attorneys as part of the Administration's desperate plea to get retroactive immunity for its telecommunications partners.

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For Immediate Release
Office of the Press Secretary
February 25, 2008

Press Briefing by Dana Perino
James S. Brady Press Briefing Room
http://www.whitehouse.gov/news/releases/2008/02/20080225-5.html

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Q Is the President's position that he would veto it without retroactive immunity?

MS. PERINO: That has been his position for a long time, and the reason is because you can't have -- without the cooperation of the companies, we won't have a program. You know, if we had a nationalized telecommunication system, then we -- the government could do it on its own, but in our system of government and the way that we are set up as a capitalist-style country, we have to have the cooperation of the private sector.

They have the technology, they have the means, and they want to cooperate, but they have been burdened with over 40 lawsuits, class-action lawsuits that would -- that, one, already are costing them lots of money to deal with. And if the suits were to go forward, it could cost them possibly billions. And that cost is going to be borne by the consumers of those businesses, the customers of those businesses. But more importantly, the companies at this point are saying that they are growing increasingly reluctant to continue to work with us because, even though they want to, they are concerned about the trial lawyer lawsuits that are pending.

Q Dana, critics would say that --

MS. PERINO: Reluctantly so. And it took a lot of work on behalf of the Justice Department and the office of Director of National Intelligence to work with the companies to work with companies to -- work with them to tell them what we need, and to tell them that we are going to continue to push for prospective and, more importantly, retroactive liability protection.

Q Who gave them the right to break the law?

MS. PERINO: Nobody broke the law, Helen. That might be your opinion, but nobody broke the law.

Q When these companies -- when no warrant is given, and they didn't break the law?

MS. PERINO: Helen, you're entitled to your opinion, but you're not entitled to your own set of facts.

Q Oh, come on, let's --

MS. PERINO: And the facts are that companies were asked to help, and they were helped --

Q Why can't they get --

MS. PERINO: -- and they allowed -- they helped with a legal program that has helped save lives.

Q Who told them they could break the law?

MS. PERINO: That is just -- that's not true, Helen.

Q Is it not the case, as the writers of the op-ed in today's Post claim, that the law protects all of this until August?

MS. PERINO: There are -- it's a little bit more complex than that, but there are certainly directives that were approved last August when the Protect America Act was passed.

Q For how long?

MS. PERINO: For one year. But it's not for -- it's not necessarily -- that does not necessarily apply to all the new targets. And it doesn't apply necessarily to maybe new companies or new providers that we would need to work with in the future, that might not already be under a directive that we're --

Q But one of your complaints of prospective. They don't affect anything that's going on right now.

MS. PERINO: That's not necessarily the case. As you heard in the letter -- you didn't hear from him, but in the letter that Attorney General Mukasey and Director of National Intelligence McConnell sent on Friday -- that there were several days last week where we lost information. Late Friday night there was a company that agreed reluctantly to continue to cooperate with us.

But one of the things you have to understand is in the world --

Q They lost information because companies wouldn't cooperate.

MS. PERINO: Correct. There was -- they are reluctant to cooperate. And during that time frame when they were trying to work with them to get them to cooperate, and to give them the comfort that they needed to be willing partners, it just took a little while. And then once that was given on Saturday morning, that the Justice Department and the Office of Director -- the DNI, put out a statement saying that they had gotten this cooperation.

But this is not the kind -- this is not the way we should be running an intelligence program where you are trying to track terrorists who are calling into or out of America. We don't want to have to be having our lawyers and other professionals in the intelligence community having to coax companies to cooperate. These companies want to cooperate. I mean, all they're saying is that they want the retroactive liability protection which passed the Senate 68-29.

Q So what does the White House think of the op-ed from the Democrats that accuse the President of using scare tactics and playing political games? And they say if the President really believed the expiration of the act created a danger, he should have accepted their offer for an extension.

MS. PERINO: Well, one, the House proved that they couldn't even pass an extension, so that wasn't an option. An extension wasn't an option. But we had a response to the op-ed, that I issued.

I think that fear-mongering and the use of the phrase "scare tactics" is something that the Democrats -- it must be, like, one of their favorite words, or it must poll very well, because they use it almost every time.

What we have done is state facts; that this is what the law said; this is what the intelligence community says that they need; this is what the bill in front of the House says, and it's one that was designed with the intelligence community, in concert with them, so that they would be able to have the buy-in and say that they would get what they need out of that bill. It passed 68-29; we think they should go ahead and pass it.

The issue really right now between the House and the Senate, as far as I can tell, the biggest issue is retroactive liability protection, and in their op-ed they just had a passing glance to that issue. But it is one of the biggest sticking points, because at the end of the day if we don't have the companies helping us, then we won't have a program.

Q But to clarify what you said earlier, did the U.S. actually lose potentially valuable intelligence on Friday, or we had difficulty securing the cooperation of the telecommunications company that eventually came to --

MS. PERINO: I'd refer you to their letter in which they said that there were several days of lost information.

Q Dana, critics would say that if those companies lose those suits, it's because they broke the law -- even if you give them prospective coverage, that there's no need to give retroactive coverage.

MS. PERINO: As we said, the program was lawful, they were asked to help their country. And look, the President's most solemn obligation is to protect the American people. And in some ways it seems that the House Democrats' most solemn obligation is to help protect the trial lawyers -- they're the ones who have brought all these lawsuits. And they're huge class-action lawsuits in which all of us consumers of telecommunications companies would be named. And if at the end of the day, say that these trial lawyers won these lawsuits -- you and I would get a dollar or two back, and they would get 46 percent of the award.

This program was lawful; and we need it. General Hayden and Director McConnell have said that this is a program that helped us save lives. It helped -- they say in their letter from Friday night that they found someone who was planning to be a suicide bomber, someone who was trying to move terrorist financing money around.

And so with the way that terrorists know that they can use technology, we have to keep up with them. We have to stay one step ahead of them. And what counts right now is seconds and minutes. It's not days' worth of time that you can spend to try to track down one of these individuals. There are times when you need to act urgently, and so you need the speed, agility and flexibility that comes from what passed in the Senate, which is a bipartisan bill that passed 68-29. And the House could pass it today if they wanted to.

Q Dana, to be clear, don't you still -- you can still pursue that information, go after it, as long as you come back within three days and get a warrant under FISA, correct? I mean, it doesn't stop them from getting information.

MS. PERINO: I'm not a lawyer; I just know, Kathleen, that it's much more complicated than that, and that the intelligence professionals and the lawyers who are working on this are trying to work with the companies to make sure that they know that we will give them everything that they need in order to be comfortable working with us.

And they have said that until they have that retroactive liability protection -- and right now, with the Protect America Act expired, there is a question from some of them as to whether or not the prospective or current activities that are ongoing, if they are protected from that. So we would just encourage Congress to go ahead and take that --

Q That really hasn't stopped the collection of intelligence, has it?

MS. PERINO: I refer you to their letter in which they said there were days lost, and that we have companies that are reluctantly working with us. And, Bill, look, take it -- do not take it from me, take it from the intelligence community professionals. These are people who are held -- would be held accountable if there were a terrorist attack. And they are saying this is what they need. They're not making this up. We wouldn't be having this debate if we didn't need this program.

Q I find it hard to believe that the communications companies involved would have cut them off if this didn't continue, with the belief that it could be made right later.

MS. PERINO: They don't believe necessarily that it may be made right later because Congress has been unwilling -- the House Democrats have been unwilling to move. They had six months to work on it; they didn't. The President graciously gave them another 14 days to work on it; they didn't do it. They even proved that they couldn't pass an extension in the House. So here we are, waiting for Congress to continue to work on it. And I will tell you, it is a fact that the companies are increasingly reluctant, whether you believe it or not. And you don't have to take it from me, but you could take it from the intelligence professionals who are responsible for making sure that all of us are kept safe.

Q If this is such a big deal, why didn't the President accept another extension?

MS. PERINO: Because the House couldn't even pass an extension bill, even if they had wanted to. They couldn't pass it. What they need to pass is a bipartisan bill --

Q The President said he wouldn't accept it, so --

MS. PERINO: Well, that's true, but they wouldn't have been able to pass it anyway.

Q -- isn't it his problem that he lost a couple of days, if in fact he did?

MS. PERINO: Absolutely not. This -- no. The President is not going to accept the blame for House Democrats not taking up a bill that passed 68-29 in the Senate.

Q Yes, but if it's such -- if it's so urgent to protect the nation's security, as you have said --

MS. PERINO: But, Bill, it still didn't do what -- the things that I have said repeatedly that it needs to do. Even if they had extended it, it doesn't provide for retroactive liability protection, which is what the companies say that they need.

Go ahead.

Q You're still collecting intelligence.

MS. PERINO: Go ahead, Roger.

Q Dana, since the law expired --

Q (Inaudible.)

Q -- on the 16th --

MS. PERINO: I'm sorry, I can't hear you.

Q Since the law expired on the 16th, do you know if any company -- if there have been any companies that have refused cooperation since then?

MS. PERINO: Look, I can't get into a lot -- this is a classified program, so I would refer you to the letter that Judge Mukasey -- I'm sorry, Attorney General Mukasey and Director McConnell put out Friday night. They said they -- in that letter, on the first page, it says they lost days-worth of information.

Q These companies have been reluctantly cooperating, and I'm just wondering if there have been any that have been --

MS. PERINO: I know that there was a certain instance in which they were not able to convince a company up until late Friday night, which is why they put out that statement Saturday morning.

John.

Q Back on the economy for a second, .............

12:31 P.M. EST