One does have to wonder

Dan Froomkin in his White House Watch column asks a very good question (italics mine):

A Washington Post story says: "Without the law, administration officials said yesterday in interviews and statements, the monitoring of terrorist groups overseas will be severely hampered. Telecom firms may also become reluctant to help the National Security Agency and other U.S. intelligence agencies conduct surveillance, officials said."

... Dana Perino on Fox News yesterday: "The House Democrats are basically doing the bidding of the trial lawyers, who are licking their chops, hoping that they could get a piece of a big class-action lawsuit against these telecommunications companies, which did their patriotic duty to help America in the immediacy following 9/11 when we weren't sure if there would be another attack."

... In a conference call with reporters yesterday, Ben Powell, general counsel for the Office of the Director of National Intelligence, made all sorts of dramatic assertions about the Protect America Act -- none of which he was able to actually back up with concrete examples. ...

Powell also addressed the issue of how retroactive liability protection for the telecoms would affect their behavior going forward.

This puzzles me. While retroactive liability for what may well have been illegal acts would certainly be a boon to the telecoms -- and would help keep the public in the dark about what the government asked them to do, as well -- on what grounds could it affect their cooperation going forward? The whole point of surveillance law -- the old one or the new one -- is to clearly define what the government can and can't demand from the telecoms. And when the government presents a telecom with a warrant or a lawful order, there shouldn't be any problem at all in having it enforced, should there?

And yet Powell suggested there might be.

Q: "[A]re you saying that there are carriers that have told you that they will no longer cooperate unless liability is included in the legislation?"

Powell: "Yeah."

But, once again, Powell wouldn't back up his assertion with verifiable examples. "I don't want to get that specific and verge on getting into classified material. But the answer is that beyond just this program, for two years, we've been saying that we are having problems getting cooperation from the private sector, not just on this program, because of this issue. . . .

"[P]rivate sector parties have said that unless we address this issue and the retroactive liability protection, it raises substantial questions about their cooperation with our operations, and have also said that there's an increasing reluctance, or an outright refusal, to willingly cooperate with us in some critical areas."

But on what grounds could the telecoms refuse lawful orders going forward? It sounds a bit like extortion to me. Unless they aren't really lawful orders. In which case it's in the public interest for them to refuse.

Very good question, Dan.