http://www.nytimes.com/2007/08/24/washington/24nsa.html

August 24, 2007

Role of Telecom Firms in Wiretaps Is Confirmed

By ERIC LICHTBLAU

WASHINGTON, Aug. 23 -- The Bush administration has confirmed for the first time that American telecommunications companies played a crucial role in the National Security Agency's domestic eavesdropping program after asserting for more than a year that any role played by them was a "state secret."

The acknowledgment was in an unusual interview that Mike McConnell, the director of national intelligence, gave last week to The El Paso Times in which he disclosed details on classified intelligence issues that the administration has long insisted would harm national security if discussed publicly.

Mr. McConnell made the remarks apparently in an effort to bolster support for the broadened wiretapping authority that Congress approved this month, even as Democrats are threatening to rework the legislation because they say it gives the executive branch too much power. It is vital, he said, for Congress to give retroactive legal immunity to the companies that assisted in the program to help prevent them from facing bankruptcy because of lawsuits over it.

"Under the president's program, the terrorist surveillance program, the private sector had assisted us, because if you're going to get access, you've got to have a partner," Mr. McConnell said in the interview, a transcript of which was posted by The El Paso Times on Wednesday.

AT&T and several other major carriers are being sued over their reported role in the program, which permitted eavesdropping without warrants on the international communications of Americans suspected of terrorism ties. The administration has sought to shut down the lawsuits by invoking the state-secrets privilege, refusing even to confirm whether the companies helped conduct the wiretaps.

Cindy Cohn, legal director for the Electronic Frontier Foundation, which is heading up the lawsuit against AT&T, said her group might ask the appeals court to consider Mr. McConnell's comments in deciding whether the state-secrets argument should be thrown out.

"They've really undermined their own case," Ms. Cohn said.

Mr. McConnell said those suits were a driving force in the administration's efforts to include in this month's wiretapping legislation immunity for telecommunications partners. "If you play out the suits at the value they're claimed," he said, "it would bankrupt these companies."

Congress agreed to give immunity to telecommunications partners in the measure , but refused to make it retroactive.

Mr. McConnell, who took over as the country's top intelligence official in February, warned that the public discussion generated by the Congressional debate over the wiretapping bill threatened national security because it would alert terrorists to American surveillance methods.

"Now part of this is a classified world," he said in the interview. "The fact we're doing it this way means that some Americans are going to die.".

Asked whether he was saying the news media coverage and the public debate in Congress meant that "some Americans are going to die," he replied: "That's what I mean. Because we have made it so public."

Mr. McConnell, though, put new information on the public record in the interview, on Aug. 14 while in Texas for a border conference.

Mr. McConnell said, for instance, that the number of people inside the United States who were wiretapped through court-approved warrants totaled "100 or less" but on the "foreign side, it's in the thousands." The Foreign Intelligence Surveillance Court, which approves national security wiretaps, told Congress it approved 2,181 eavesdropping warrants last year. The court and the administration have not been willing to break out how many Americans were in those orders.

Mr. McConnell did not make clear the time frame for his estimate, nor was it clear whether he was referring to the security agency's program of eavesdropping without warrants, which was brought under the oversight of the intelligence court in January. Officials in his office refused to clarify what he meant.

Mr. McConnell also offered the administration's first public discussion about a classified series of rulings by the intelligence court that he said had restricted the agency's ability to collect foreign intelligence.

He said one judge this year gave broad approval for the agency's eavesdropping program. But another judge, he said, ruled in the spring that the administration would have to obtain a warrant for any "foreign to foreign" communications that passed through an American telecommunications center.

The administration obtained a stay of that ruling until May 31, he disclosed, but after that date he intelligence officials had "significantly less capability" to track foreign communications. The ruling sent the administration "in the wrong direction," he added.

The American Civil Liberties Union, which has petitioned the intelligence court to make public its secret wiretapping rulings, expressed frustration on Thursday with the timing of Mr. McConnell's comments.

"If this ostensibly sensitive information can be released now, why could it not be released two months ago, when the public and Congress desperately needed it?" asked Jameel Jaffer, director of the group's national security project.

Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said the interview "was quite striking because he was disclosing more detail than has appeared anywhere in the public domain."

"If we're to believe that Americans will die from discussing these things," Mr. Aftergood said, "then he is complicit in that. It's an unseemly argument. He's basically saying that democracy is going to kill Americans."