When the 9/11 Commission issued its report, our findings pointed to a basic failure by responsible federal officials to connect the dots. We sought a series of changes to how government is structured and operates to help prevent that problem in the future. Congress has passed legislation implementing most of our recommendations. But now, as Congress debates the revisions to the Foreign Intelligence Surveillance Act (FISA), some are threatening to obliterate some of the dots altogether by allowing lawsuits to proceed against private sector companies that help the government root out terrorists. This would be a serious mistake that could fundamentally endanger our security.
The major sticking point in the FISA bill now under consideration involves whether to allow legal action against the telecommunications companies that cooperated with the government in the aftermath of 9/11. Some in Congress, led by Senate Intelligence Committee Chairman Jay RockefellerJay RockefellerLobbying world Overnight Tech: Senators place holds on FCC commissioner Overnight Tech: Senate panel to vote on Dem FCC commissioner MORE (D-W.Va.), have proposed providing limited legal protection to those companies, noting that they were acting in good faith and doing what they believed to be their patriotic duty. Because the investigations were highly classified, however, the companies were not allowed to see any information about the underlying evidence.
Now these telecommunications firms are being sued for invasion of privacy, and they are facing the potential of billions of dollars in liability. But what were these companies to do? Consider the atmosphere: the president had gone before Congress and said “one vial, one canister, one crate, slipped into this country, could bring a day of horror like none we have ever known.” So if these companies refused to cooperate, by implication, that dark day could be on their conscience. And now they cannot even defend themselves in court, because the details of the investigations remain classified.
Under duty-of-care requirements of the Sarbanes-Oxley law, corporate boards are no doubt following this debate carefully. Even with congressional action, the risk to shareowners of cooperating with the government on national security matters will seem risky to some. If Congress doesn’t act, corporations may conclude that they simply cannot afford to risk shareholder dollars in lawsuits. As a consequence, the entire system for investigating terrorism may be fundamentally undermined.
As the 9/11 Commission noted, al Qaeda and its allies have sophisticated intelligence, communications, and operational capabilities. But al Qaeda doesn’t have its own jets (they used ours) and it doesn’t have its own intranet to communicate — the terrorists used (and continue to use) the phones and e-mail systems of U.S. companies.
It is now clearer than ever that to connect the dots in future terror investigations, the government simply cannot do it alone — it must have the full, unwavering support of private industry. The global proliferation and increasing sophistication of terrorist operations means that every private enterprise — from the telecom and tech companies to the car renters and airlines, data-mining and credit card firms, chemical manufacturers and fertilizer retailers — virtually every private concern in the U.S. economy must be willing to help out when a terrorism investigator comes to call.
As the think tank Third Way has argued to Congress, this country could not have won World War II if General Motors had been unwilling to stop making cars and start making armaments. The call then was for B-17s and Sherman tanks; today it is for PIN registries and travel records. As I saw during my own service on the Senate Intelligence Committee, the private sector continues to play an enormously important role in securing and defending the United States, both here and abroad.
Moreover, as a former member of that committee, I know that its role is to do precisely what it has done in this case: to provide careful, closed-door, bipartisan oversight of executive branch action, when airing details in the open could undermine our national security. Here, the committee reviewed the relevant classified documents and voted 13-2 in favor of legal protections for the companies, because those senators believed that to be in the best interests of the United States.
That is not to say that the committee offered its stamp of approval for the president’s actions. Indeed, as Chairman Rockefeller has noted, there is no question that the president’s warrantless surveillance program crossed the line.
When the program was revealed, I shared in the outrage. If abuses occurred and innocent people were victimized, then those in government who were responsible should be held to account. But right now, the wrong defendants are in the dock. It is the government — those who conducted the investigations, solicited the data and, allegedly at least, misused the material — that should pay the price, not companies who did their duty by cooperating with a terror investigation.
We wrote in the 9/11 Commission report that “unity of purpose and unity of effort are the way that we will defeat this enemy and make America safer for our children and our grandchildren.” We cannot hope to achieve such unity of effort if on the one hand we call upon private industry to aid us in this fight, and on the other allow them to be sued for their good-faith efforts to help.
Kerrey is president of the New School in New York City. He was a U.S. senator from Nebraska, governor of Nebraska and a member of the 9/11 Commission.