Certain Democratic senators are doing their Pavlov's dog routine again, responding to the bell of the trial lawyers who finance their campaigns. In this instance, they are reopening a fight to make telecommunications companies liable for trillions of dollars for complying with a presidential directive to assist in a "warrantless surveillance" program against suspected terrorists. This has negative consequences for public safety, for the already staggering economy and for the cause of basic fairness and justice.
Even though the Senate just last year - after many months of debate - gave immunity to the telecoms for participating in the program, some senators want to take immunity away.
Democratic Sens. Christopher J. Dodd of Connecticut, Patrick J. Leahy of Vermont, Richard J. Durbin of Illinois, Russ Feingold of Wisconsin and Jeff Merkley of Oregon introduced various measures last month to make the telecoms subject to class-action lawsuits.
All five have been major recipients of donations from plaintiffs' attorneys, including thousands of dollars of contributions each from attorneys actually involved in these cases. The Washington Times' Amanda Carpenter, at a previous post, discovered that while only 29 of 100 senators voted to make the telecoms subject to lawsuits, 24 of those 29 had received campaign cash from one or more of the plaintiffs' attorneys in lawsuits already filed against the companies.
If these senators had their way, the suits could proceed even though any harm claimed to have been done by the electronic data mining is wholly speculative. However, the harm that could be done to national security is very real.
When the Senate was debating immunity for the telecoms, former Sen. Bob Kerrey, Nebraska Democrat and a member of the 9/11 Commission, said that allowing lawsuits against the companies for their well-meaning assistance could mean that "the entire system for investigating terrorism may be fundamentally undermined."
Senate Intelligence Committee Chairman John D. Rockefeller IV, West Virginia Democrat and a real liberal's liberal, warned that "our intelligence collection could come to a screeching halt."
All the while, the citizens supposedly burdened by the data mining are not really threatened with a loss of privacy. Nobody is eavesdropping on the conversations of ordinary Americans. Instead, the data-mining reportedly involved having computers analyze calling patterns, among tiny data bits, among 4,000 terabytes (4 billion megabytes) of information, to see if there are repeated links to known foreign terrorists. Mail-order catalog companies analyze more information on one person every day of the year than these telecom computers would do in a lifetime.
Yet one of the main lawsuits claims that each American whose phone number has ever crossed one of these government databases - somewhere among those 4 billion megabytes that only a piece of silicon ever "sees" - should be paid $1,000 merely for being subject to the search.
That's just part of the "damages" it demands. When all the math for the 24.6 million Americans supposedly affected is worked out, the total payout from the companies could reach $7.2 trillion - well over half of the entire American economy.
To put that in perspective, the entire American telecom industry in 2008, including equipment sales, amounted to just $696 billion. That is less than one-tenth of the damages this lawsuit would ask the industry to pay. That's like trying to squeeze 10 ounces of blood from a 1-ounce turnip.
The Senate last year granted immunity only after instituting a careful series of safeguards for civil liberties. There's no need to reopen that careful compromise just for the sake of a few dozen wealthy lawyers trying to get still wealthier - especially when it would come at the expense of the nation's economic health and safety.