Tort Lawyers Dictate to Dems

House Speaker Nancy Pelosi and the Democrat-controlled House took a 10-day recess rather than extending Presidential wiretap authority, thus letting the law expire. Regular readers know that my research and analysis confirms that the President has such authority independent of Congress; the case law is in accord. Some Dems disagree. The recess allowed the House Speaker to attend her daughter's wedding. Still, the proximate reason for Pelosi's rebuff "is that the Senate bill provided immunity for telecom companies that cooperate with intelligence agencies."

How did the tail of immunity end up wagging the wiretapping dog? One answer is that lefty nut roots favor the anti-Bush fishing-expedition law-suit discovery offers, plus see the cases as a disincentive for future private-sector cooperation in the war on terror, as liberal Stuart Taylor, Jr., wrote in the January 19th National Journal, quoted on the floor of the House:

The telecoms face more than 40 class actions seeking hundreds of billions of dollars in damages for their roles in the Bush program, which they agreed to after being assured that the attorney general had deemed the program lawful.

Allowing this litigation to continue would, as a group of highly respected former Justice Department officials wrote in a joint letter to the Senate Judiciary Committee, "produce perverse incentives that risk damage to our national security," because "both telecommunications carriers and other corporations in the future will think twice before assisting any agency of the intelligence community seeking information." . . .

"Given our experiences," the former officials wrote, "we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities." But the proper forum is the congressional oversight process, they asserted, not "a public lawsuit against private companies that were asked to assist their nation." . . .

On the other hand, People for the American Way, like other liberal groups, argues that immunity would "protect telecoms that knowingly violated law." But the telecoms did not violate the law -- even if Bush did -- according to an October 26, 2007, Senate Intelligence Committee report urging adoption of the immunity proposal as part of an important bill updating FISA.

The committee, after forcing the administration to show investigators the relevant presidential and Justice Department documents, found that the record showed that the telecoms "acted on a good-faith belief that the president's program, and their assistance, was lawful." Courts have for centuries seen such a good-faith belief as grounds for immunizing from lawsuits private parties that heed government officials' requests for help in protecting public safety, especially in emergencies. . .

So why are some senators, including Patrick Leahy, the Senate Judiciary Committee's senior Democrat, fighting the immunity proposal?

The real reasons are election-year pressure from liberal groups and the hope that the lawsuits will force public disclosure of information embarrassing to the Bush Administration. Leahy said in a press release that he opposed giving retroactive immunity to the telecoms because that would reduce their incentives to protect privacy and "would eliminate the courts as a check on the illegality of the warrantless wiretapping of Americans that the administration secretly engaged in for almost six years." . . .

In my own view, Bush's decision to secretly override FISA for a time immediately after 9/11 was probably a lawful exercise of his war powers. But his legal rationale became weaker and weaker when he continued to override the law for months and years without seeking congressional approval. . .

But doubts about the legality of Bush's actions are no justification for holding hostage telecoms that relied on the administration's assurances of legality and were in no position to second-guess its assertions that the surveillance program was essential to national security.

Not, that is, unless we want to risk that the telecoms, credit card companies, banks, airlines, hospitals, and other private companies -- whose cooperation is essential to finding terrorists before they strike -- will balk or delay when the next president seeks their help in an emergency.

And to keep things in perspective, let's remember that even if Bush did violate the law, the terrorist groups targeted by his surveillance program have taken thousands of American lives; that the program itself has apparently caused no serious harm to anyone (except terrorists); and that no evidence exists that Bush or anyone else has ever made any improper use of any intercepted communications.

In Monday's Washington Post, columnist Robert Novak suggests an even simpler motive--money:

The true reason for blocking the bill was Senate-passed retroactive immunity to protect from lawsuits private telecommunications firms asked to eavesdrop by the government. The nation's torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party's most important financial base, would be more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving individuals' personal information to intelligence agencies without a warrant. Mike McConnell, the nonpartisan director of national intelligence, says delay in congressional action deters cooperation in detecting terrorism.

Big money is involved. Amanda Carpenter, a Townhall.com columnist, has prepared a spreadsheet showing that 66 trial lawyers representing plaintiffs in the telecommunications suits have contributed $1.5 million to Democratic senators and causes. Of the 29 Democratic senators who voted against the FISA bill last Tuesday, 24 took money from the trial lawyers (as did two absent senators, Hillary Clinton and Barack Obama). Eric A. Isaacson of San Diego, one of the telecommunications plaintiffs' lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity.

Carpenter's article includes this:

On Wednesday, the Senate held a critical vote on an amendment to the FISA reauthorization that would grant this immunity. It passed, but 29 Democratic senators voted against it. 24 of them have accepted campaign contributions from trial lawyers who are suing the government over those activities.

Two of them are running for President.

Sen. Barack Obama (D.-Ill.), who is in the running for the Democratic nomination, was given $28,650 from trial lawyers listed as counsel for plaintiffs who are suing those companies becuase they turned over phone records as a part of President Bush’s covert phone surveillance program. $19,150 of that was donated in the last year.

Sen. Hillary Clinton (D.-N.Y), the other main contender for the Democratic presidential bid, also accepted money from trial lawyers on the case. Records show those lawyers have poured $34,800 to her and her husband’s campaigns over the years. $12,150 of those donations were made to her within the last year.

The other 22 senators who opposed the amendment and have taken similar donations are: Joe Biden (Del.), Barbara Boxer (Calif.), Maria Cantwell (Wash.), Ben Cardin (M.D.), Chris Dodd (Conn.), Byron Dorgan (N.D.), Dick Durbin (Ill.), Russ Feingold (Wisc.), Teddy Kennedy (Mass.), John Kerry (Mass.), Amy Klobuchar (Minn.), Frank Lautenberg (N.J.), Patrick Leahy (Vt.), Carl Levin (Mich.) Robert Menendez (N.J.), Patty Murray (Wash.), Jack Reed (R.I.), Harry Reid (Nev.) Charles Schumer (N.Y.), Debbie Stabenow (Mich.), Jon Tester (Mont.) and Ron Wyden (Ore.).

Clinton did not vote Tuesday because she was campaigning. She has, however, voted against granting telephone companies immunity and other FISA reforms in the past.

Since 1997, Senate Majority Leader Sen. Harry Reid (D.-Nev.) accepted donations from three lawyers working the FISA case that amount to $10,000. The No.2 Democrat in the Senate, Dick Durbin, who is charged with whipping votes, has accepted $18,350 from 1996 through 2007 from lawyers listed as counsel against phone companies. . .

Records show that House Speaker Nancy Pelosi (D.-Calif.) accepted $3,750 in donations to her campaigns and PACs from these lawyers from 1996-2001.

Conclusion: Accepting campaign contributions, even from lawyers, is no crime. Instead, the issue is whether the Dems can be trusted with national security. There's no doubt the expiration of Congressional authorization dramatically hampers anti-terror intel:

Mike McConnell, the Director of National Intelligence, was the Director of President Clinton's National Security Agency from 1992-'96. He is not a partisan hack. He was a Vice Admiral in the Navy and is an old intelligence pro.

On Fox News Sunday this morning, McConnell explained that President Bush has been following his (McConnell's advice) on intelligence reform. As of midnight this morning, intelligence gathering powers are now back to where they were before the Protect America Act was passed in August 2007. At that time, according to McConnell, we had lost about two-thirds of our overseas collection capacity because of the FISA court ruling which, for the first time in history, required court authorization for monitoring foreigners outside the U.S. who contact other foreigners outside the U.S.

The Protect America Act reversed that ruling for six months. It is now expired. We cannot collect on new targets overseas without going to the FISA court and showing probable cause that the target is an agent of a foreign power. As foreigners outside the U.S. have no U.S. legal protection (or at least didn't until the FISA court ruling), and as the federal courts have no jurisdiction outside the U.S., we are not supposed to have to make any showing whatsoever to collect intelligence overseas.

So the House puts re-election ahead of America; tort lawyers trump anti-terrorism. As Power Line's John Hinderaker concludes, "If this seems nuts, it is; but it is the world we live in, and the world that Nancy Pelosi is determined to preserve for her contributors in the plaintiffs' bar."

(via Protein Wisdom)