Letting Lawsuits Cripple Our Foreign Intelligence

By December 3, 2007Briefly Legal

Senator Christopher Bond (R-MO) called in from Missouri to talk to several bloggers this afternoon, bringing attention to the Senate’s pending consideration (maybe this week) of S. 2248, the FISA Amendments Act, i.e. the reworking of laws governing the collection of foreign intelligence. The current law, an extension passed in August, expires on February 1.

In this effort to bring intelligence law up to date, the big sticking point has become immunity for the telecommunications companies. About 40 lawsuits have been filed against the carriers that cooperated with the federal government’s requests to help monitor possible foreign terrorist activities in the wake of the murderous September 11, 2001, attacks.

In short, privacy groups and cash-hungry trial lawyers have teamed up on litigation that can only discourage private citizens from cooperating in the government’s efforts to capture the people who would kill and maim us.

Suppose it could be A LOT of cash.

Senator Bond:

We can’t have an effective intelligence system for electronic collection unless we have protection and cooperation of carriers. And in addition, we have lots of challenges in cyber-security that’s going to require close cooperation with the carriers. If we leave them exposed to attacks by trial lawyers for wildly exorbitant claims, which in my view have absolutely no basis in fact, then how can they justify to their shareholders cooperating with the government?

I have read the opinions of the Department of Justice, the Attorney General, the orders, those are, I believe, lawful on their face. They’re lawful orders of the government. And it is absolutely irresponsible to refuse to give protection to American companies or other carriers who have cooperated with us, and leave them exposed to random lawsuits to collect attorneys fees and to gather fodder for those who believe that terrorists abroad should get constitutional protections and the privacy rights of American citizens.

When you tell that to somebody back here in Missouri, they look at me in disbelief, and I said, “Yes, that’s what this is all about.”

The Senate Intelligence Committee passed out a bipartisan version of the bill that provides retroactive and prospective immunity for the telecoms. (Here’s the committee’s report.) The Senate Judiciary Committee stripped out the immunity (as did the full House in passing its own bill, H.R. 3733).

This is a disastrous course of action. As a nation, we were supposed to have awakened after 9/11 to the real threats that our civilizational enemies represented. Citizens would stand vigilant, aiding those in government in preventing new and deadly attacks.

Has our resolve slipped? Has the country changed so much in the six years since?

Strip immunity from the intelligence surveillance bills, and the answer will be, sadly, yes.

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