Mysterious Opposition to Antiterrorism Protections Explained

House leaders blocked consideration of a bill that would extend the federal government’s power to monitor overseas terrorists and communications with them from the U.S., knowing that if the full House considered the bill, a coalition of Republicans and moderate “Blue Dog” Democrats would pass it. (It passed the Senate by a whopping 68-to-29 vote).

Why would they oppose such an obviously necessary bill? Curt Levey, a former attorney with the Office for Civil Rights, thinks he has the answer to the mystery: House leaders are pandering to the trial lawyers who fund them. The trial lawyers oppose the immunity for phone companies contained in the bill.

Trial lawyers are currently suing the phone companies for billions of dollars for cooperating with the federal government’s antiterrorism surveillance program. The laws under which they are suing contain a double standard that exposes private entities, like the phone companies, to a greater risk of liability than the government officials responsible for conducting the program.

Even if the bill is passed, U.S. intelligence agencies’ surveillance will be far more restricted than foreign intelligence agencies, as Roger Pilon and others have pointed out. (Pilon notes that the bill actually requires too much cumbersome oversight of some intelligence gathering).

The argument by some critics of the bill that a warrant should be required prior to any surveillance of terrorist communications utterly baffles my wife, an immigrant from Europe who once worked for a defense attache. No European intelligence agency labors under so many restrictions on its intelligence-gathering as ours do. Nor does anything in the language of the Constitution’s Fourth Amendment require such impediments. It merely indicates than when a warrant is in fact legally necessary — such as for the search of a private home — probable cause is required. The Framers understood quite well that not even all searches (much less intelligence-gathering) require a warrant.