Torts and Terrorism
By Robert D. Novak
CNSNews.com Commentary
February 18, 2008
A closed-door caucus of House Democrats last Wednesday took a risky political course. By four to one, they instructed Speaker Nancy Pelosi to call President Bush's bluff on extending the Foreign Intelligence Surveillance Act (FISA) to continue eavesdropping on suspected foreign terrorists. Rather than passing the bill with a minority of the House's Democratic majority, Pelosi obeyed her caucus and left town for a 12-day recess without renewing the government's eroding intelligence capability.
Pelosi could have exercised leadership prerogatives and called up the FISA bill to pass with unanimous Republican support. Instead, she refused to bring to the floor the bill approved overwhelmingly by the Senate. House Democratic opposition included left-wing members typified by Rep. Dennis Kucinich, but they are but a small faction. The true cause for blocking the bill was the Senate-passed retroactive immunity from lawsuits for 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, is more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving personal information to intelligence agencies without a warrant. Adm. 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 plaintiff's lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity .
The bill passed the Senate 68 to 29, with 19 Democrats voting aye. They included Intelligence Committee Chairman Jay Rockefeller and three senators who defeated Republican incumbents in the 2006 Democratic takeover of Congress: Claire McCaskill of Missouri, Jim Webb of Virginia and Sheldon Whitehouse of Rhode Island.
That opened the door for Pelosi to pass the bill with minority Democratic support. A Jan. 28 letter to the speaker signed by 21 House Blue Dogs (moderate Democrats) urged passage of Rockefeller's bill containing immunity. Democrats supporting it could exceed 40 in a House vote, easy enough for passage.
Instead, the Democratic leadership Wednesday brought up another bill simply extending FISA authority, this one for 21 days. Republicans refused to go along because it did not provide phone companies with the necessary immunity. It still could have passed with support from Democrats only, and the leadership surely thought that would happen when it was brought to the floor Wednesday. But it failed, 229 to 191, with 34 Democrats voting no despite pleas for support from their leaders. The opponents included three congressmen who signed the letter to Pelosi advocating immunity from lawsuits, but most were Kucinich Democrats who intuitively vote against any anti-terrorist proposal.
Clearly, opposition to the Rockefeller bill shown in the subsequent House Democratic caucus derived less from Kucinich's phobia to tough anti-terror countermeasures than obeisance to generous trial lawyers. Pelosi had to decide whether to pass the bill with a minority of her party, which can be dangerous for any leader of a House majority. In October 1998, Republican Speaker Newt Gingrich passed the Clinton administration's budget with 30 percent Republican support, less than a month before GOP losses in midterm elections forced his resignation from Congress.
Nothing will be done until the House formally returns Feb. 25, and the adjournment resolution was constructed so that Bush cannot summon Congress back into session. Last Friday morning, debating two backbench Republicans on a nearly deserted House floor, Majority Leader Steny Hoyer said there was no danger in letting the FISA legislation lapse temporarily. Democrats hope that will be the reaction of voters, as Republicans attack what happened last week.
( To find out more about Robert D. Novak and read his past columns, visit the Creators Syndicate web page. The views expressed are those of the writer.)
Copyright 2008, Creators Syndicate, Inc.
Copyright 1998-2006 Cybercast News Service
Pelosi and the Protect America Act
By Rich Galen
CNSNews.com Commentary
February 18, 2008
SPECIAL SEDITION EDITION
From Merriam-Webster's Third Unabridged dictionary:
Sedition: Conduct tending to treason but without an overt act.
The United States House of Representatives went into their nearly two-week-long President's Day recess without acting on a Senate Bill which would have re-authorized the Foreign Intelligence Surveillance Act or FISA (pronounced here in Washington with the I as in EYE.)
FISA was first passed in 1978 -- keep that date in mind -- and, according to the Liberal Federation of American Scientists website: "prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power."
Last year, after the uproar over the so-called "warrantless wiretaps," the Congress passed the "Protect America Act" which made some minor adjustments to FISA like including the fact that there were no such things as commercial cell phones in 1978.
The Democrats in the House and Senate, despite the recognition that national security was, in fact, at stake, placed a sunset on that law to give them a chance to see what political hay could be made of it.
The law expired some weeks ago, and was given a temporary reprieve which expired at midnight, Friday February 15, 2008.
While it is true that the underlying FISA remains in place, reverting to a law which was based on intercepting intelligence with the technology which was in place 30 years ago puts the US at great risk.
Getting a warrant to wiretap a phone in the dark days before Blackberries was a lengthy process, but investigators could be pretty certain that a call from a certain number was going to be tied to a certain address, because it was being made from a phone wired into the wall, which was wired into the phone system of whatever country the wall was located.
Now, however, a bad guy can walk into just about any coffee shop or convenience store, buy a pre-paid card for a cell phone walk out and begin plotting to do something horrid.
The notion of preparing 100-page requests for surveillance warrants which take days or weeks is ludicrous in an era when phones themselves are disposable - used for one or two calls and then dropped into a sewer.
One of the ways intelligence services do this is to look for patterns of calls. Of most interest are calls which come into or leave the US to and from places where it is suspected people are plotting to do us harm.
There are a lot of cell phones in the world so a very efficient way to spot suspicious patterns is to analyze records kept by US phone companies.
Following 9/11, the US Government asked the major phone companies to turn over their records of calls coming into or leaving the US so the big computers in places like Ft. Meade, Maryland could begin looking for those patterns we were talking about.
Remember when we have been told that increased "chatter" warned of an impending terrorist action somewhere? That's more-or-less what we're talking about here.
Enter the Trial Lawyers and the ACLU.
The Trial Lawyers want to sue the phone companies for having turned over their records to the government so the government could figure out this whole pattern thing.
The phone companies would prefer not to be sued for, what they (and I) consider to have been a patriotic act following the 9/11 attacks.
The bill which the House Democrats went on vacation without re-authorizing gives those phone companies immunity from law suits filed by Trial Lawyers on behalf of people and organizations who think their records might have been placed into one of those massive pattern-recognition databases.
The US Senate adopted the theory that such lawsuits should not be permitted and voted to extend the Protect America Act. A clear majority of Members of Congress also would have voted to extend the Protect America Act.
But Speaker of the House, Nancy Pelosi, putting the demands of the Trial Lawyers and the MoveOn.org wing of the Democratic Party ahead of America's safety refused to let the bill come to the floor for a vote.
Leaving the rest of us unprotected.
The main switchboard number at the US Capitol is: 202-225-3121. Feel free to call and leave a message for Speaker telling her what you think.
Just to be safe, call from a cell phone.
On the Secret Decoder Ring page today: Links to a brief history and description of the Foreign Intelligence Surveillance Court, and to the history of cell phones. Also a piece from Fridays "gaggle" by the White House press office. No Mullfoto or Catchy Caption today.
Copyright 2008, Richard A. Galen
(The views expressed are those of the writer.)
Copyright 1998-2006 Cybercast News Service
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