BOB GARFIELD:
From WNYC in New York, this is NPR's On the Media. I'm Bob Garfield.
BROOKE GLADSTONE:
And I'm Brooke Gladstone. This week, as Congress wrangles over bills to extend the administration's secret wiretapping program, some lawmakers grow increasingly frustrated by government stonewalling. The White House wants Congress to grant immunity to the phone companies that violated privacy laws by handing phone records over to the government, but the secrecy over the spying program has placed a roadblock in front of immunity legislation because, as Pennsylvania Republican Arlen Specter, minority head of the Senate Judiciary Committee, said this week on CNN -
ARLEN SPECTER:
I'm not going to buy a pig in a poke and commit to retroactive immunity when I don't know what went on.
BROOKE GLADSTONE:
The one telephone company that isn't being sued by citizens or citizen groups for complying with wiretapping programs is Qwest Communications. But their former CEO Joseph Nacchio does have other legal problems. He's appealing his conviction for overstating the value of Qwest's earnings. Documents from Nacchio's appeal suggest that Qwest refused to comply with an NSA wiretapping program almost seven months before September 11th, 2001.

George Washington Law School professor Jonathan Turley says we should take these allegations with a grain of salt because they are part of his criminal defense.
JONATHAN TURLEY:
But his allegations are supported by other sources. We know, for example, that this administration had an interest in data mining before 9/11. So in that sense, he has some corroboration.

It's also true that Qwest seems to be the only company that vigorously opposed the government's demand.

His entire defense [LAUGHS] was that the reason numbers were low is because when the company refused to do something that they considered to be unlawful, that the NSA and the U.S. government yanked a major contract that they were relying on. The court would not allow the jury to hear that defense.
BROOKE GLADSTONE:
Obviously, the phone companies continue to pretty much stonewall about the details of what they did and didn't do, and AT&T and Verizon have told Congress that the White House is preventing them from talking, citing the State Secrets Privilege. It's kind of -- you bring it down and say, if we tell you what it is we're supposed to be trying here, the nation's security could be at risk.
JONATHAN TURLEY:
You know, I litigated one of the leading cases on state secrets. And that is a doctrine that is much abused by the government, but it is almost entirely used within the court system.

Here the White House is telling companies that they cannot speak to an oversight committee and share information to Congress. That raises very significant constitutional questions of separation of powers and even contempt.
BROOKE GLADSTONE:
Is it possible that these phone companies should be immune from prosecution? If the programs were illegal, shouldn't the plaintiffs sue the government agencies, as the phone companies suggest?
JONATHAN TURLEY:
[LAUGHS]
BROOKE GLADSTONE:
You know, does that seem -- you're laughing.
JONATHAN TURLEY:
[LAUGHS] Just because it won't happen. Look, I sue the government all the time. It's my bread and butter. But that ain't gonna happen. The government is going to claim the military and state secrets privilege. The Congress has done nothing to rein in the abuses of that doctrine. So, the chances of actually going against the government on something like this is nil.

This argument by the telecom companies that, you know, we're the wrong people to sue, frankly, is fallacious. They have a contract with citizens, and they're in the business not just of communication but of confidential communications. Otherwise, nobody would be doing business with them. It's part of their marketing. It's part of their promise. And what they're saying is that they want Congress to step in and protect them against their own customers who are saying that these companies violated their agreement.

These telecom companies are now the only serious barrier in terms of violation of privacy left. Now, in the best of all worlds, we would have a court system that was engaging in reviews and issuing warrants. But both Congress and the White House have now made that impossible.

BROOKE GLADSTONE:
This whole discussion is predicated on the notion that the government has no case when it says it needs these rights to protect our national security. Data mining is supposed to be an updated way to keep us protected. Do you feel, honestly, that their defense of this endeavor holds no water whatsoever?
JONATHAN TURLEY:
Honestly, I do believe that. And the reason is that before 9/11, they had a very powerful tool. There's a secret court that many of us have long been critical of, and the requirements of that secret court were very, very low. It just required some independent review of these surveillance efforts.
BROOKE GLADSTONE:
But the secret courts were devised in a pre-Internet time. The government suggests that demanding these kinds of clearances is unwieldy and dangerous to our security.

JONATHAN TURLEY:
Well, those are statements that are rarely tested in the media. They're accepted as true. In fact, the President has suggested that under the old system before he could issue a wiretap against some individual, they'd have to run and get approval from a judge, and by that point the call's already been made. That has never been the case.

Before 9/11, they could go ahead and wiretap. They just had to eventually go to a judge, explain to them they had to do this under emergency situations and let the judge review it. But they're opposing even that power. It's not that the administration does not have a legitimate interest here. We all want to make sure that they can do what they need to do to protect the country. But the framers of the Constitution created a process by which citizens can't be subject to surveillance. This bill circumvents that process.
BROOKE GLADSTONE:
Jonathan, thank you very much.
JONATHAN TURLEY:
It's my great pleasure.
BROOKE GLADSTONE:
Jonathan Turley is a law professor at George Washington Law School.