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Fact Sheet: Retroactive Liability Protection Is Critical to Our National
Security
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For Immediate Release Office of the Press Secretary July 8, 2008

Fact Sheet: 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

ÿÿWhite House News

ÿÿÿÿÿ In Focus: National Security

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:
  þ The electronic communications service provider did not provide the
    assistance; or
  þ 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.
  þ 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.
  þ 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.
  þ 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.

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."
  þ 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.
  þ 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.

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