FISA and the “Ravenous Trial Lawyers”

One of the common talking points of advocates for warrantless wiretapping is that the debate is really about lining the pockets of “ravenous trial lawyers.” As I’ve said before, this is a particularly silly argument. An op-ed in Sunday’s Chicago Tribune makes this argument particularly well:

The Bush administration and its acolytes now claim that we must give giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. The truth is that telecoms do not need a special deal. These companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. But, in this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers – suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

This is ultimately not about money, but about the principle that nobody is above the law. I actually think that a reasonable compromise would be to limit damages due to past FISA lawbreaking. This would ensure that telecom companies aren’t driven into bankruptcy while upholding the principle that violating your customers’ privacy—and the law—comes with consequences. Of course, I’d bet money that supporters of warrantless wiretapping wouldn’t accept that compromise, because they, too, know that this is an issue of principle, not money.