Prepared Remarks of Attorney General Michael B. Mukasey at the American Bar Association National Security Law Breakfast

Dec 19, 2007, 00:00 ET from U.S. Department of Justice

    WASHINGTON, Dec. 19 /PRNewswire-USNewswire/ -- The following are
 prepared remarks of Attorney General Michael B. Mukasey at the American Bar
 Association National Security Law Breakfast:
     Thank you Stewart for that introduction. It's a pleasure to be here
 with you today. I want to talk to you this morning about the need to put in
 place--permanently--the national security tools that we use for the war on
 terror--and in particular, about the need to modernize the Foreign
 Intelligence Surveillance Act, or "FISA" as it's commonly called.
     Since becoming Attorney General, I've learned quite a lot, from my
 perspective, about how vital it is that we get timely intelligence to
 protect Americans from those who think it is their religious duty to do us
 harm. We have seen what happens when terrorists go undetected. We have to
 do everything possible, within the law, to prevent terrorists from
 translating their warped beliefs into action.
     To stop them, we have to know their intentions, and one of the best
 ways to do that is by intercepting their communications. The United States
 has tremendous technological capabilities in such disciplines as computer
 science, telecommunications, and cryptology, but we've not been allowed to
 use that capability to full advantage.
     The same cannot be said of our enemies. Our adversaries adhere to
 fanatical ideologies based on their tortured views of teachings from the
 seventh century. But they take full advantage of twenty-first century
 technologies to recruit, organize, and command their international network
 of terrorist operatives. It is critical that we leverage our capabilities
 to intercept and monitor their communications to the fullest extent.
     The main law that governs our ability to intercept communications of
 foreign powers and agents of foreign powers, including international
 terrorists, is outdated. That statute, FISA, was enacted in 1978, and thus
 is almost thirty years old. FISA, as many of you know, regulates when the
 Government must obtain a court order to conduct foreign intelligence
 surveillance, including the interceptions of communication of our foreign
     Much has changed from the time when FISA was enacted.
     First, the statute was enacted before some of the most dramatic changes
 in communications technology in world history. For example, the statute was
 passed long before the use of the internet and cell phones became
 commonplace. It was also written at a time when international
 communications traveled more frequently by radio, as opposed to by wire.
     FISA defined key terms--most notably its definition of "electronic
 surveillance," which establishes the circumstances under which court
 approval is required--by reference to the technologies of that time. The
 dramatic changes in telecommunications technology since 1978 resulted in an
 expansion of the scope of activities covered by FISA, and caused FISA to
 apply increasingly to our efforts to surveil the communications of
 terrorists and other intelligence targets located overseas.
     The government often had to obtain an order from the FISA Court - a
 process that includes the burdensome completion of detailed paperwork and
 can result in significant delays--before monitoring the communications of
 these foreign targets. In certain cases, this requirement of obtaining a
 court order slowed, and in some cases may have blocked, surveillance
 efforts that were potentially vital to the national security.
     As the Director of National Intelligence has stated publicly, these
 requirements resulted in an intelligence gap.
     These requirements also gave terrorists located in foreign countries
 the protections Americans enjoy, and diverted resources that would have
 been better spent on protecting the privacy interests of people here in the
 United States.
     Second, when FISA was passed in 1978, the United States had not yet
 been subjected to major terrorist attacks on U.S. soil. At the time, the
 faces of terrorism were seen in such groups as Black September, the
 Baader-Meinhof Group, and the Japanese Red Army. It was a time when
 Congress was worried that, if a terrorist hijacked an airplane, the purpose
 would be "to force the release a certain class of prisoners or to suspend
 aid to a particular country." Sounds almost quaint today. It was not a time
 in which we worried that a hijacked airplane would be turned into a missile
 steered by suicidal terrorists to inflict mass civilian casualties on our
     In other words, the nature of the threat we face, and the technological
 landscape through which that threat manifests itself, has changed a lot in
 the days since 1978.
     Last spring, the Administration sent Congress a comprehensive
 legislative package to amend FISA to meet today's intelligence challenges.
 Congress recognized the need to close the intelligence gap that had been
 created by outdated provisions of FISA, and in August, Congress passed the
 Protect America Act of 2007.
     In simplified terms, this Act allows our intelligence professionals to
 surveil foreign intelligence targets located abroad without prior court
 approval. Also, contrary to much of the rhetoric that followed the passage
 of the Protect America Act, that legislation gave the FISA Court a
 significant role in those collections, authorizing the Court to review the
 procedures in place for deciding whether targets of surveillance under the
 authority are in fact overseas.
     The new law has made us safer and has closed the intelligence gap.
     That measure of safety, unfortunately, was temporary. The Protect
 America Act contains a "sunset" provision. Absent legislative action by
 Congress, the Protect America Act will expire on February 1, 2008.
     I must say that I have learned quite a lot about the merits of sunset
 provisions from my role in overseeing the implementation of the Protect
 America Act. That Act's sunset provision is in many respects
 understandable; the Act was passed quickly, in response to Congress's
 concerns about our Nation's security in a heightened threat environment,
 and it is under circumstances like those that sunsets provisions are most
 appropriate. But sunset provisions also have significant costs.
     The uncertainty about what the rules will be governing critical
 intelligence collection presents serious challenges to our intelligence
 professionals. That uncertainty also provides disincentives to third
 parties to cooperate with us. If the rules are going to be different
 tomorrow from what they are today, then it's hard to justify investing
 money and time today.
     These are serious costs that should be considered during the current
 debate, where--although Congress has had extensive hearings and debates on
 the need to modernize FISA--some continue to urge that any reforms be
 accompanied by a short and disruptive sunset provision.
     As I mentioned in the outset, our goal as a nation should be to develop
 long-term, institutional changes that improve our capabilities to prevent
 terrorist attacks--and sunsetting undermines our ability to do that.
     Since Congress passed the Protect America Act, as you all are aware,
 there has been significant debate and discussion about how to offer
 long-term solutions to modernize FISA. This has been, by and large, a
 positive, collaborative process between Congress and the Executive Branch,
 and we will continue to work closely with Congress to put these needed
 authorities on a permanent footing.
     Since the Act passed, officials from the Justice Department and the
 Intelligence Community have testified many times about the needed
 authorities; we have held briefings on our implementation of the Act and
 oversight of our use of these authorities, and we have met with
 Congressional Members and staff on these issues, as well as on how the
 permanent legislation should look.
     I am hopeful that there is now consensus about the core authorities in
 the Protect America Act, and that they are the right ones--that our
 intelligence agencies should not have to get individualized FISA Court
 orders in order to conduct surveillance of foreign intelligence directed at
 targets in foreign lands. That is the core of the intelligence act.
     I also want to address the issue of protecting telecom companies from
 lawsuits. It's critical that Congress provide retroactive liability
 protection for telecommunications companies, as a bipartisan bill from the
 Senate Intelligence Committee does. Let me explain why this is important.
     Over 40 lawsuits have been filed against telecommunication companies
 simply because these companies are believed to have assisted our
 intelligence agencies after the attacks of September 11th. The amounts
 these claims-which run into the hundreds of billions of dollars; that's
 billions with a B--are enough to send any company into bankruptcy. These
 companies face lawsuits, they face bankruptcy, they face loss of
 reputation, they face millions of dollars in legal fees, all because they
 are alleged to have helped the government in obtaining intelligence
 information after 9/11.
     Even if you believe the lawsuits will ultimately be dismissed, as we
 do, the prospect of having to defend against these massive claims is an
 enormous burden for the companies to bear.
     Not only is the litigation itself costly, but the companies also may
 suffer significant business and reputational harm as the result of the
 allegations against them--allegations which may or may not be true, but to
 which they cannot publicly respond, because they're not allowed to confirm
 or deny whether, and to what extent, they provide classified assistance to
 the Government.
     Many of these companies also have a heavy overseas presence, and that
 aspect of their business may be particularly vulnerable to financial and
 physical harm as a result of the litigation. As you might imagine, these
 companies and others may decide that it's too risky to help the
 Intelligence Community in the future, no matter how great our need for
 their assistance may be. And after a year studying this issue, that's
 exactly what the Senate Intelligence Committee found. That committee said
 in its report--that, "without retroactive immunity, the private sector
 might be unwilling to cooperate with lawful Government requests in the
 future," resulting in a "possible reduction in intelligence" that the
 committee said is "simply unacceptable for the safety of our Nation."
     In an age where we need to use every possible advantage to understand
 an enemy that may seek to exploit and hide within the vast expanses of the
 internet, we simply cannot afford to discourage the private sector from
 helping us to detect and prevent the next terrorist attack.
     And not only is immunity in the best interest of our Nation's security,
 it's also a fair and just result. After reviewing the relevant
 correspondence between the Executive Branch and the companies that did
 assist with communications intelligence activities after the September 11
 attacks, the Senate Intelligence Committee concluded that those companies
 acted on a good faith belief that their assistance was lawful.
     Indeed, as the Committee recognized, the companies were responding
 during an extraordinary time of national emergency and relied on written
 assurances that the President himself authorized the activities and that
 high-level Government officials had determined the activities to be lawful.
 Given these unique circumstances, such companies deserve our gratitude, not
     Some, however, argue that we should not provide blanket immunity
 because the private sector will have less incentive in the future to insist
 on the Government's compliance with applicable statutes. The liability
 protection offered in the Intelligence Committee bill, however, is not
 blanket immunity.
     It applies only in a very narrow set of circumstances--if the Attorney
 General certifies to a court that the company either (1) did not provide
 the alleged assistance, or (2) did provide assistance between September
 2001 and January 2007 with communications intelligence activities designed
 to detect and prevent a terrorist attack, and only after receiving a
 written request from a high-level Government official indicating that the
 activity was authorized by the President and determined to be lawful.
     A court must review this certification before an action may be
 dismissed, and the immunity does not extend to the Government, Government
 officials, or any criminal conduct. In short, the provision in the
 Intelligence Committee's bill would provide protection only in
 circumstances where such protection is appropriate.
     Others have raised concerns about dismissing the lawsuits altogether
 and have therefore proposed continuing the cases with the Government
 substituted as a defendant in place of the telecommunication companies.
 Proposals for substitution may reflect a genuine desire to remove the
 companies from the lawsuits, but that's not an adequate solution.
     If the cases continue, even solely against the Government, the
 companies would still be subject to the type of third party discovery
 requests, litigation costs, and reputational harm that could deter their
 future cooperation with the Intelligence Community. After all, the point of
 the lawsuits would still be to expose whether particular companies provided
 assistance, and, if they did, what that assistance entailed. And if that
 kind of information is exposed through litigation, it will harm not only
 the companies, but also the national security. The lawsuits and the
 information they generate could become a smorgasbord for our enemies.
     As the Intelligence Committee concluded in its report, the specific
 identity of those who assist us with intelligence activities and the nature
 of their assistance must be protected as vital intelligence sources and
 methods. The risk of disclosing that kind of information is not a risk
 worth taking, particularly where the only effect of substituting in the
 Government as a defendant would be to shift any liability from the
 telecommunication companies to the American taxpayer.
     Because of the risks, and because the proposed liability provision
 covers telecommunications companies that simply did what the Government
 asked them to do, it makes no sense to allow this litigation to go forward.
 The proposed alternative of substitution would force the American taxpayer
 to bear the cost and risks of litigating the very assistance that their
 Government asked for in order to help protect our Nation and would be bound
 to result in disclosures that could harm us.
     Providing immunity to these companies will not, by itself, deprive
 critics of the Government's surveillance activities of their day in court.
 There are already a number of surveillance cases against the Government
 itself winding their way through the courts. While we strongly believe
 those cases must also be dismissed in order to protect highly classified
 intelligence information, the courts are going to have the final say over
 that. What protecting companies will do, as the Senate Intelligence
 Committee concluded on a near unanimous and bipartisan vote of 13 to two,
 is to encourage private entities to help us in the future, when lawful, by
 not punishing those who have provided good faith assistance in a time of
 crisis with the threat of ruinous liability. That's a goal that will serve
 the security of this Nation for many years to come, well beyond the current
     Recently, within the last couple of days in fact, a proposal has been
 made as an alternative to the Congress deciding on the issue of immunity.
 Under that proposal, the litigation would be sent to the FISA Court to
 decide, under a multi-part test, whether the provider's assistance was
 appropriate. In contrast to the relevant provision of the Intelligence
 Committee bill, which would allow for the prompt dismissal of the
 litigation, this new proposal would likely result in protracted litigation.
 That is, the companies would continue to be subject to the burdens of
 litigation to determine how and why they assisted the Government. And the
 litigation would still risk the disclosure of highly classified
     These risks are unnecessary and unwise. The Senate Intelligence
 Committee has concluded that those who assisted received written assurances
 that the activities were lawful and were being conducted pursuant to a
 Presidential authorization. Transferring those cases to the FISA Court
 after this extensive review could be read as sending a signal that Congress
 doubts the actions of these companies--the same companies the Intelligence
 Committee recognized that we rely on to help us protect the Nation.
     It could cause companies in the future to feel compelled to make an
 independent finding that before complying with a lawful Government request
 for assistance, they have to conduct their own investigation. That could
 cause dangerous delays in critical intelligence operations and put the
 companies in the impossible position of making the legal determination
 without access to the highly classified facts that they would need to do
     Let me put the importance of private sector cooperation to our national
 security in some historical perspective. In the Second World War, private
 industry was not on the sidelines. It was engaged, such that the full
 measure of this Nation's might was brought to bear against our enemies.
 Some of the assistance of private industry to the United States and its
 allies came before the bombs dropped at Pearl Harbor.
     Of course, after the bombs dropped on Pearl Harbor, American industry
 turned from peacetime production to wartime production virtually overnight.
 Our government was a part of some of that effort, but much of it was
 voluntary. Our armed forces and those of our allies were by any measure an
 awesome force. But our armies did not win World War II alone. They won with
 the cooperation of American industry and the assistance of civilians.
     We had our Pearl Harbor on September 11th, 2001. We will need the level
 of cooperation from American industry that was seen in World War II, and we
 will need to tap into the technological ingenuity of the private sector if
 we are going to prevail. Our military, our intelligence agencies, and our
 law enforcement agencies are forces to be reckoned with, as they should be.
 But we cannot fight this fight alone. We have to be able to enlist and draw
 upon the lawful cooperation of the private sector.
     And of course, our efforts against that threat also must take place
 with scrupulous respect for civil liberties and within the rule of law.
 FISA modernization legislation is only one example of how we put in place a
 tool that we need to fight against terrorists, while protecting the rights
 of Americans. I recognize that as Attorney General I have to be committed
 to both of those goals. I am here to tell you that I am.
     Thank you very much for inviting me today.

SOURCE U.S. Department of Justice