Retroactive Liability Protection Is Critical To Our National…

         Retroactive Liability Protection Is Critical To Our National Security
    Congress Should Not Pass Any Amendments To Delay Or Eliminate Retroactive Liability Protection For Companies
                        Believed To Have Assisted Our Government In The Aftermath Of 9/11

As Congress returns from its Fourth of July recess, it should act quickly to pass the crucial long-term FISA
modernization bill to keep our Nation safe. The strong bipartisan legislation passed in the House provides the
Intelligence Community with the tools it needs to secure our Nation while protecting the liberties of Americans. This bill
also provides the necessary legal protections for those companies sued in the aftermath of 9/11. Both Houses of
Congress, by wide bipartisan margins, have made the judgment that retroactive liability protection is the appropriate and
fair result. If Congress were to include any amendment that eliminates or delays liability protection for those that assisted
the Government in the aftermath of 9/11, the President would veto this legislation.

Three Senate Amendments Threaten The Important Liability Protection Provided In The Bipartisan House Bill

1. The Dodd/Feingold/Leahy amendment proposes to entirely eliminate retroactive liability protection from the
   bipartisan House intelligence legislation. The Administration opposes any amendment to strike liability protection
   because any companies that may have assisted the Government after 9/11 were assured that their cooperation was
   legal and necessary. The liability protection in the bipartisan House legislation does not extend to the Government or
   Government officials, and it does not immunize any criminal conduct. The liability protection provision applies only in a
   narrow set of circumstances. An action must be dismissed if:
   · The electronic communications service provider did not provide the assistance; or
   · The assistance was provided in the wake of the 9/11 attacks and was the subject of a written request or series of
       requests from a senior Government official indicating that the activity was authorized by the President and
       determined to be lawful.

2. The Specter Amendment would continue to leave companies vulnerable to unwarranted and unfair lawsuits.
   Congress should not allow companies to be subjected to billion-dollar claims because they are believed to have
   answered the Government's request for assistance and were assured of the legality of any actions.

    ·    This amendment would unnecessarily prolong and delay litigation, and the companies being sued would
         continue to be subjected to burdens of litigation such as attorneys' fees and disruption of their
         businesses. This could deter private sector cooperation with the intelligence community.

    ·    The amendment would also risk the disclosure of highly sensitive classified information concerning
         intelligence sources and methods. Extending this litigation could lead to the disclosure of highly sensitive
         national security information and would be contrary to the well-established state secrets privilege doctrine.

3. The Bingaman amendment would unnecessarily postpone a decision on whether to provide liability protection
   to telecommunications companies. The amendment would prevent providers from receiving retroactive liability
   protection until 90 days after the Inspectors General of various departments complete and submit a review of prior
   activities.

    ·    Providing prompt liability protection is critical to our national security. These cases have already been
         pending for years, and delaying implementation of the liability protections means that the companies would remain
         subjected to the prospect of defending against multi-billion-dollar claims and continue to suffer from the uncertainty
         caused by pending litigation.




7/8/08                                       White House Office Of Communications
Retroactive Liability Protection Is The Appropriate And Fair Result

Liability protection is a fair and just result and is necessary to ensure the continued assistance of the private
sector. The Senate Intelligence Committee already conducted an extensive study of the issue and determined that
providers had acted in response to written requests or directives stating that the activities had been authorized by the
President and had been determined to be lawful. This Committee, chaired by Sen. Rockefeller (D-WV), carefully studied
the issue and found that "without retroactive immunity, the private sector might be unwilling to cooperate with lawful
Government requests in the future without unnecessary court involvement and protracted litigation."

·   The assistance of private-sector telecommunications companies is vital to protecting our Nation from attack.
    Most of the communications infrastructure the Intelligence Community relies on is owned and operated by the private
    sector, meaning private-sector assistance is essential to gaining intelligence on the plans of those who wish to attack us.

·   Without this protection, companies will be increasingly reluctant to provide vital cooperation because of their
    uncertainty about the law and fear of being sued by class-action trial lawyers.




7/8/08                                       White House Office Of Communications