Senate Dems: Trial lawyers’ pockets more important than anti-terrorism legislation

by Ted Frank on December 18, 2007

Amid deep and growing divisions among Senate Democrats, Senate Majority Leader Harry M. Reid (D-Nev.) last night abruptly withdrew [the Foreign Intelligence Surveillance Act that would have also] granted the nation’s telecommunications companies retroactive immunity from lawsuits charging they had violated privacy rights.

(Jonathan Weisman and Paul Kane, “Telecom Immunity Issue Derails Spy Law Overhaul”, Washington Post, Dec. 18). Reid had previously promised to pass the bill this month, but a handful of Democratic senators, most notably Dodd and Kennedy, threatened to block the bill because of the immunity provision. Reid had the votes to pass it (a filibuster attempt failed 76-10), but chose not to. Earlier: Nov. 5 and Oct. 31.

Update: Were the government’s actions were illegal? Maybe, though reasonable minds can differ. But the question is different from the one of the dynamic consequences of finding private liability here. If corporations are held liable every time they agree to cooperate with the government on a national-security issue that is potentially ambiguous, they just won’t cooperate at all without a court order. Perhaps that is the rule we want going forward. But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers—and if it is the rule Congress wants, they should state it explicitly, so voters can hold them accountable for the consequences, rather than hiding behind trial-lawyer surrogates that later reward them for the earmarks to the trial bar. Should trial lawyers make terrorism policy?

{ 15 comments }

1 Tom T. 12.18.07 at 8:40 am

Have any of the telecoms ever commented on why they declined to invoke the immunity provision already existing in FISA?

2 Xmas 12.18.07 at 10:21 am

Tom T.,

The problem is the telecoms are being sued over alleged NSA equipment rooms in their central offices. If this is true, then some portion (all?) of their network traffic (internet and phone calls) was being copied straight into NSA equipment, without regards to any warrant.

All of the telecoms, except for Qwest, allowed the NSA to install their equipment. Qwest was the only one that said, “Don’t you need a warrant for that?”

Check out:

http://blogs.abcnews.com/theblotter/nsa_/index.html

3 Xmas 12.18.07 at 10:24 am

Tom T.,

Of course, it looks like you’re already all over this case, judging from your comments in the past posts….

4 Cathy 12.18.07 at 11:22 am

Senate Dems: Trial lawyers’ pockets more important than anti-terrorism legislation

Really? You think there is no other valid policy argument justifying pulling the bill? Senate Democrats had absolutely nothing more on their minds than the desire to keep plaintiff’s lawyers in business?

Are you *really* sure the record supports this contention?

5 Heather 12.18.07 at 12:50 pm

Yeah–it’s much more likely that they prefer that the U.S. remain vulnerable to terror attacks organized overseas. The windfall for trial lawyers–who donate heavily to the DNC–is just a sweet bonus.

6 John Beaty 12.18.07 at 2:41 pm

Gosh, Heather you are so right on! No-one could have ANY dispute about ANY bill without supporting overseas terrorist organizations! How clever of you to figure that out. When are YOU going to run for office?

7 chris w. 12.18.07 at 2:48 pm

I am normally firmly in the Overlawyered camp, but not on this issue.

In this instance I am all for trial lawyers making this short-sighted decision on the part of large telecom conglomerates a very, very painful one. Harry Reid may be doing it for the wrong reasons, but I certainly don’t want these companies to be granted immunity of any sort.

8 Anderson 12.18.07 at 4:52 pm

Seeing everything through the “greedy trial lawyers” lens means seeing some things very badly, or not at all.

I don’t think it does Mr. Frank any credit to appear so crudely reductive.

I would prefer that companies not break the law, even if the President asks them to. The “rule of law” is now a scheme of the greedy trial lawyers? Shame on Aristotle ….

9 John Burgess 12.18.07 at 5:46 pm

Anderson: That may be why non-Aristotelian logic prevales among the wise.

10 David Schwartz 12.18.07 at 7:16 pm

Wow, I have to totally disagree on this one. This has nothing to do with greedy trial lawyers and everything to do with phone companies that don’t give a damn about privacy and want to curry favor with regulators.

Congress already made it clear that they are accountable for conspiring with the government if they don’t go through the proper legal channels and are totally immune from suit if they do.

11 Cathy 12.18.07 at 8:56 pm

Your update sounds sensible, at least to the extent of questioning whether we want companies who cooperate with the government to be subject to citizens’ private rights of action. Still, citing the trial bar as a factor in the policy decision is needlessly cynical and obfuscates the issue. The Senators who pulled the bill didn’t do it at their behest, and if the answer to the question of whether we do want private rights of action against such companies does turn out to be yes (as many, many private citizens believe), then we’re going to need those trial lawyers’ help.

12 Clueby4 12.18.07 at 11:40 pm

“Reasonable minds can differ”!?

Whatever helps you sleep, buddy. If you truely don’t understand how the telecom companies acted illegally, you have no right to claim yourself to be reasonable.

And what’s worst, we still have people parroting the word “Terrorism”. When it been well covered that the surveillance program was in play before 9/11. For citations google “Poindexter”

13 Anderson 12.19.07 at 9:31 am

“But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers”

Funny, I thought that was the policy choice Congress had *already made* by enacting the *existing* legislation.

All the telcos had to say was “looks great, guys, but we have to protect ourselves – come back with a court order.”

How hard was that?

And what happened to Qwest, the one telco that did that? Gov’t contracts withdrawn ….

14 spongeworthy_us 12.19.07 at 10:26 am

At the risk of being repetitive, I again must take you to task for conflating blame which rightly belongs to the law and the legislators who made it, rather than, as you seem to insist, to the lawyers who seek to apply the law.

Why do you think that when the telcos violated the FISA law requiring a court order before wiretapping and now seek retroactive immunity via a new law, that it is somehow the fault of trial lawyers when the new law is derailed? That makes no sense whatsoever.

Lawyers are not and have not been (and I would hope never will be) writing legislation, in this case at least.

Sorry, bub but you’ve completely overreached on this one, a common problem with blogs.

15 Ted 12.19.07 at 11:04 am

1) If a corporation cannot rely upon a Department of Justice advisory that it is acting legally, what can it rely upon? (And it’s far from clear to me that the DOJ wasn’t right. What we’re seeing now is second-guessing that the telcos may eventually win, at some legal expense to their shareholders.)

2) Who says I’m blaming lawyers? I’m blaming legislators for punting their responsibility to unelected trial lawyers, and stating that it is bad public policy to put these decisions in the hands of trial lawyers, whose incentives are not aligned with what is best for the country.

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