Is helping the government hunt terrorists a civic duty or a business decision?
Much debate over the National Security Agency's terrorist surveillance efforts-warrantless and otherwise-has centered on the question of patriotism. Was it the "patriotic duty," as many intelligence officials, lawmakers and the White House insist, for telecommunications companies to help the government monitor phone calls, e-mails and online traffic for warning signs of terrorism, as they began doing very soon after the Sept. 11 attacks? Or, notwithstanding the crisis and any real desire to prevent a future calamity, did those companies break the law by not insisting on some judicial authorization, even though the president himself requested the help and assured his partners that it would be legal?
The consequences for companies facing multibillion-dollar lawsuits as a result of their participation are grave. But in this binary context, the term patriotic doesn't fully explain their actions. The word becomes synonymous with well-intentioned, selfless or exigent, and is meant to elevate the debate, however implausibly, above mere questions of law. But let's be clear. Patriotism wasn't the only thing motivating them.
First, the companies were paid. Although it's vague how much, they were compensated at least for their time and labor, and likely through existing contracts. Legislation introduced last year to amend surveillance laws called for carriers to be paid "at the prevailing rate" whenever they participate in electronic monitoring.
Second, the carriers were pressured. The administration made it clear that its request for help was industrywide. One could read that as a patriotic call to arms. But to the companies that were approached, there was a more obvious message: Your competitors are cooperating, and so should you. At least one carrier rebuffed the request-Qwest Communications Inc., which holds billions in government contracts-and according to former intelligence officials, its decision was not greeted favorably.
Finally, the companies could expect they'd be protected if their assistance was ever revealed. Officials and lawmakers sought legal immunity last year for those who participated in secret because they recognized that there would be no intelligence activities without those companies' help. Immunity makes it more likely that companies won't be put out of business by lawsuits or scared out of working for the government ever again.
"The fact is, private industry must remain an essential partner in law enforcement and national security," Sen. John Rockefeller, D-W.Va., chairman of the Senate Select Committee on Intelligence, wrote in a Washington Post op-ed in October. "If American business-airlines, banks, utilities and many others-were to decide that it would be too risky to comply with legally certified requests, or to insist on verifying every request in court, our intelligence collection could come to a screeching halt."
Rockefeller correctly noted that these public-private partnerships exist beyond the boundaries of judicial oversight. After Sept. 11, merchants, hotel operators, rental car companies and others voluntarily handed over information they thought might be relevant to the attacks. One former White House official said this cooperation was what allowed the government to identify the 19 hijackers so quickly, and to launch a search for potential accomplices. Without the private sector's participation, it could have taken days to piece together that information, if ever.
All this was on the table after Sept. 11, in addition to patriotism, which to some degree must also have been a motivating factor. No one, not even the most vocal opponents of corporate immunity, believes that the government actually can perform its mission without private assistance, particularly in times of crisis. But to wrap the debate in the banner of patriotism obscures a basic reality underlying these controversial acts: It's just business.
Shane Harris, a staff correspondent for National Journal, wrote about intelligence and technology at Government Executive for five years.