Usually, congressional leaders criticize business executives only when they refuse to cooperate with government officials. Recently, however, Senator Specter, chairman of the powerful Senate Judiciary Committee, has called for hearings designed in part to investigate businesses whose primary wrongdoing was a willingness to cooperate with the government during the war on terrorism.

The uproar over alleged and potentially unlawful activities by the National Security Agency raises troubling questions about the proper relationship between corporations and government agencies. When government agencies ask for help, they place firms in awkward positions. Google, AT&T, BellSouth, and Verizon are just the most recent examples.

Consider Google. In March, it was roundly criticized for refusing to help the Justice Department with a child pornography investigation while it was negotiating a lucrative contract with China that permitted censorship of its services in the country.

Now consider Verizon. In 2003, a federal court, using the Digital Millennium Copyright Act, ordered a reluctant Verizon to reveal the identity of a suspected music pirate, substantially eroding customer privacy. Now, three years later, Verizon is said to have cooperated – along with AT&T and BellSouth – with the NSA in collecting data on the calling patterns of millions of Americans, USA Today reported.

Cooperating with a government agency has another risk: criticism from the press. In recent days, Comcast, T-Mobile, and others have issued sanctimonious statements disavowing any cooperation with the NSA. Yet it is far from clear that the NSA activities were illegal. The USA Today article repeatedly refers to the Foreign Intelligence Surveillance Act as a basis for government surveillance activities, but not once to the Communications Assistance for Law Enforcement Act, perhaps the most commonly used basis for government surveillance activities of telecommunications services.

Coincidentally, in the past 10 days, the Federal Communications Commission has both reaffirmed the application of Calea to telecommunications services over the Internet, and a federal court has questioned its application. Moreover, the president has enormous discretion with respect to wireline services under the Communications Act of 1934 in the event of a “threat of war,” a common phrase in recent years.

The USA Today article erroneously suggests AT&T, Verizon, BellSouth, and Qwest collectively handle all telephone traffic in America. There are more than 1,000 other local exchange companies, dozens of wireless companies, several Internet backbone providers, and many more voice-over-Internet-protocol phone services. Sprint, Alltel, Level 3, Skype and others are large service providers. If the NSA were intent on monitoring all phone traffic patterns nationwide, the cooperation of far more than four companies would be necessary.

Today Qwest is hailed for having refused to cooperate with the NSA. In contrast, AT&T, BellSouth, and Verizon are being ridiculed. Two of those companies – AT&T and BellSouth – are preparing to merge. For the past several months, it seemed obvious that nothing short of a cataclysmic event would derail this merger. The Department of Justice and FCC were unlikely on their own to find such an event, but the USA Today article may yet provide the script to slow the merger, if not stop it completely.

Our government, not private businesses, has the responsibility to protect civil liberties and defend our country against enemies, both domestic and foreign. The pursuit of one responsibility should not eclipse the other. If legal mistakes have been made by our government, it should shoulder that responsibility directly rather than leave cooperating private corporations to suffer reputational and financial loss.

While they may ultimately be exonerated, AT&T, BellSouth, and Verizon have already been convicted in the court of public opinion for merely cooperating with the NSA. Businesses have two choices: cooperate and potentially earn the wrath of Congress and the public, or refuse to cooperate and risk earning the wrath of the administration. This is a chilling situation for any corporation – and it’s no way to fight a war on terrorism.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott–roth.com.