Posted by lex, on February 18, 2008
We were fortunate that Al Gore resided in the US when he invented the Internet: Being first kids on the block, our infrastructure ** built out more rapidly than the rest of the world, which now mostly uses US switches and hubs to pass telecom data from place to place. That lucky historical happenstance means that terrorism-related communications between Master Blaster in Beirut or Islamabad and the mentally deficient splodeydope on the wet end of the stick in Baghdad or Tel Aviv might well pass through New York, Miami or Los Angeles.
Juicy pickings for the clever dicks at NSA, and after those towers came down on a bright September morning not so very long ago, the agency’s lawyers argued that communications between Master Blaster and any surviving stateside sympaticos of Mohammed Atta, et al might be worth a sniff as well. The nation being in an evident state of war as evidenced by a Congressional Authorization on the Use of Military Force, and the president’s Article II powers permitting him to gather intelligence on enemies foreign and domestic as a necessary incident to those powers.
Not everyone agreed, famously. Having whipped the nation into a frenzy on the fear that their emails to Osama bin Laden might have been peeked at in transit, and riding that horse – among others – to majority status in Congress, the new leadership swiftly extended the program for six months, and then again for the better part of a year attempting to suss out the best way to spy on our enemies while preserving the trembling balance between civil liberty and national security. The Senate recently voted by a healthy margin on a bill that would do just that, while also protecting US telecoms from ruinous lawsuits. These corporate citizens had intuited that “social responsibility” might mean more than buying fair trade coffee beans from Starbucks. It might also mean pitching in when your democratically elected government asked you for help preventing your fellow citizens from being immolated.
Which senatorial codicil proved a deal breaker in the House of Representatives: Speaker Nancy Pelosi declined to bring the Senate bill up for consideration before Congress went on recess. In the WaPo today, Robert Novak follows the money:
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.
It’s hard to come to any other conclusion but that tort bar thinks it can wrest more money from US corporations for the crime of having done their bit in the war on terror than the bar would have to pay Congress for the privilege of doing so. Flush with their winnings, they’d be free to donate even more to the good fellahs in Washington who made it all possible. Win-win, so long as no new terror plot goes undiscovered.
The old program was not self-evidently illegal, as demonstrated by those temporary Congressional permissions for it to go about pretty much as it used to do. And if the best legal minds in the country can spend an inconclusive year attempting to get the privacy/security balance right, is it any surprise that corporate lawyers erred to the side of caution with governmental assurances in a time of crisis? After all – while this might come as a surprise to those allies of Dennis Kucinich who think that nothing can be true if W also believes in it – not everyone in America instinctively views the President as a 21st century Sauron made flesh.
Depending on your view of privacy rights vs. public safety, the horse may have gotten out of the corral for a while under the President’s original program, but it has been well and truly brought to harness in the mean time. Since the surveillance program would have come under both congressional and judicial scrutiny under the Senate’s bill, the only plausible reason to leave the retroactive immunity provisions out of the House version is not a high minded desire to prevent the telecoms from future excesses in cooperative zeal, but to let the tort bar rummage through their corporate wallets.
Letting the wire go dead for a few weeks is a gamble of course, but the possibility of an undetected terrorist plot costing thousands of American lives has to be weighed against the certainty of all those millions rolling in as campaign donations during an election year.
I guess that’s a risk worth taking.
11-09-20 – Link gone; no replacement found – Ed.