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?