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Publication: Conservative Review
Torts and Terrorism

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                  February 19, 2008

Torts and Terrorism
By Robert D. Novak

WASHINGTON, D.C. - 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 Surveill-
ance 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 renew-
ing 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 Democr-
atic 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 tele-
communications firms asked to eavesdrop by the government. 
The nation's torts bar, vigorously pursuing such suits, 
has spent months lobbying hard against immunity. 

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The recess by House Democrats amounts to a judgment that 
losing the generous support of trial lawyers, the Democr-
atic Party's most important financial base, is more danger-
ous 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 non-
partisan director of national intelligence, says delay in 
congressional action deters cooperation in detecting 

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 


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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 immun-
ity. 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. 

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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. 

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