Don't punish the private sector for helping defend national security.
When I was director of central intelligence during President Clinton's first term, I had occasion to go hat in hand to the private sector several times. In one case, it was over a detail that, if made public, could have caused a valuable source to be captured or killed; in another, there was a technical feature of a system in production that, slightly modified, was of great help to the nation.
In these several cases, executives of American companies heard me out and willingly met my requests, to the substantial benefit of our national security. They had no legal requirement to do so, and they knew it. They were helping solely out of a sense of patriotism and an understanding that some steps that the nation needs to take in a dangerous world cannot be taken in public, simply because informing the public informs an opponent or an enemy.
Shortly after 9/11, something similar happened. Senior US officials asked telecommunications companies to assist the government in intercepts involving terrorist groups such as those that had just attacked us and killed thousands of people. In these cases, President Bush authorized the intercepts and the senior officials gave written assurances to the companies that their cooperation was legal.
In my judgment, the president acted properly; he had the authority under the Constitution to ask for such intercepts. In addition, his request was reasonable because surveillance of enemy-to-American communications is a time-honored means of intelligence gathering in the US. George Washington did it; those under his command intercepted and read correspondence between Benedict Arnold and his spy handler, foiling the plot to turn the fort at West Point over to the British.
But even if one believes the request was illegal and unreasonable – and there are distinguished constitutional lawyers and patriotic citizens on both sides of this debate – the issue currently before the Senate Judiciary Committee is much narrower. It is whether the telecommunications companies that complied with the president's request and trusted the government's assurances of legality should be granted immunity from about 40 lawsuits demanding billions of dollars.
Sen. John D. "Jay" Rockefeller (D) of West Virginia, chairman of the Intelligence Committee, has stated that companies "should not be dragged through the courts for their help with national security." And now Sen. Dianne Feinstein (D) of California, a member of the Judiciary Committee, has endorsed his statement, saying that the companies should not be "held hostage to costly litigation in what is essentially a complaint about [Bush] administration activities."
Senator Feinstein is a member of the one-vote Democratic majority on the Judiciary Committee, and it is possible that her position will determine the outcome. I hope it does. Her stance is farsighted. Having once, when I was practicing law, taken depositions for months about a single one-hour meeting, I know something about how burdensome litigation can be. If, in the end, the surveillance request made by the government is deemed improper, the government should be held accountable, not those who complied with its request.
We live in a world of terrorism, the possible proliferation of nuclear weapons, and a host of other risks to our security. Intelligence, and the cooperation of the private sector in obtaining and protecting it, will be among our most important tools to avoid catastrophes such as 9/11 or worse. Some future senior government official may need to make a call on a CEO of the sort I did, and that others did after 9/11. We and our children will be better off if the official can answer the question "Can you guarantee that my company won't be sued if we help the country?" with: "If it happens, we'll get protective legislation approved as in 2007."
We would be in much more danger if, because companies that helped after 9/11 became ensnared in years of litigation and financial losses, that official has to answer the question with a shrug.
R. James Woolsey, a vice president of the consulting firm Booz Allen Hamilton, was director of central intelligence from 1993 to 1995. ©2007 Los Angeles Times.