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The showdown between the Federal Communications Commission and Congress over the Bush administration’s warranteless wiretapping program took a new turn, with FCC chief Kevin Martin rebuffing a seven-month-old request by a key House member to investigate whether telecom carriers violated communications privacy laws through their cooperation with National Security Agency.
Martin has long claimed investigating telecom carriers would violate laws prohibiting disclosure of state secrets, but could not get the Justice Department to confirm that view in the months since the FCC chairman wrote the DoJ in early March.
In a new letter to House telecom subcommittee Chairman Edward Markey (D-Mass.), Martin said the Justice Department referred his letter to Mike McConnell, director of national intelligence. McConnell responded to Martin in an Oct. 2 letter, saying the U.S. has consistently asserted military and states secrets privileges in domestic surveillance litigation because disclosure of such information could cause grave damage to national security.
“[B]ecause an FCC investigation into these allegations would . necessarily entail those types of disclosures, it is our view that such an investigation would pose an unnecessary risk of damage of the national security,” McConnell wrote Martin.
Martin, who has pressed Martin to investigate telecom carriers since May 2006, was not satisfied with Martin’s refusal to conduct a probe.
“I am disappointed by the FCC’s response,” said Markey. “I still hold that it is well within the authority of the independent agency responsible for the enforcement of our nation’s communications privacy laws to investigate the very serious reports that the intelligence agencies were using telephone companies to obtain phone records and Internet data on citizens without proper, prior authorization. “I believe the agency could conduct its own examination of such reports in a way that safeguards national security.”
At the same time, Markey accused the White House of being the real culprit.
“But the real roadblock here continues to be the Bush administration. The letter to the FCC from the director of national intelligence is unsurprising given that this administration has continually thwarted efforts by Congress to shed more light on the surveillance program,” Markey stated.
Markey and other House Commerce Committee leaders recently sent letters to top telecom carriers requesting information on the extent of any involvement with the NSA warantless wiretap program. The lawmakers also solicited input from privacy advocates.
“Protecting the homeland is vital, but we can do so without undermining the essential privacy rights of American citizens,” said Markey. “Congress clearly needs to get to the bottom of this and I will continue my efforts to do so.”
Martin’s decision not to investigate is apt to further hinder Bush administration efforts to secure legislation that would give telecom carriers liability protection in the kind of NSA-related lawsuits they’ve been hit with in recent years.

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