FISA: The Plaintiff’s Bar as Policymakers

By February 19, 2008Briefly Legal, Communications

The Wall Street Journal continues its editorial analysis today of the House leadership’s decision to allow the authority to intercept foreign communications lapse.

As for immunity for the telecom companies:

We asked one phone company executive what he’d do, after Friday’s expiration, in response to a government request for cooperation. His answer was blunt: “I’m not doing it. If I don’t have compulsion, I can’t get out of court [and those lawsuits]. . . . I’m not going to do something voluntarily.” Having talked to telecom executives, we can tell you this view is well-nigh universal.

And a harsh but accurate assessment:

What we have here is a remarkable display of the anti-antiterror minority at work. Democrats could vote directly to restrict wiretapping by the executive branch, but they lack the votes. So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies. Then if there is another terror attack, they’ll blame the phone companies for not cooperating.

Again, this is not a universal point of view among Congressional Democrats — the Senate bill extending the surveillance authority passed with support from both parties, and Sen. Jay Rockefeller (D-WV) has been a strong advocate for effective authority. In the House, 21 Democratic members have expressed support for the Senate bill, S. 2248. But the activist left and plaintiff’s bar seem to have the upper hand, at least tactically, at the moment.

(From the Wall Street Journal’s Law Blog, via Glenn Reynolds.)

Join the discussion One Comment

  • Paul Dirks says:

    From the EFF

    “The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans’ communications. In May, 2006, many other cases were filed against a variety of telecommunications companies. Subsequently the Multi-District Litigation Panel of the federal courts transferred approximately 40 cases to the Northern District of California federal court.

    From the WSJ:

    “So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies”

    Some Wikipedia links:

    I only mention it because it would appear that the lawsuits predate the seating of the current (D controlled) Congress by almost a year.

    So was the 109th Republican Congress complicit in “unleashing the trial bar” or is in fact the Wall Street Journal lying?

    I think we all know the answer to that one.

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