Jamie Kirchick...massive asshole. I love how he doesn't bother to note whether he thinks the "nutroots"* are even wrong on issues like the FISA bill. Calling them names is so much more fun than substantive engagement.
* I can concede that the netroots has been right on more issues than I have, before I came around -- namely, the Iraq War, and mistrust of Joe Lieberman. That's because I'm a mature human being who can admit a mistake. Kirchick is a child who thinks pugnaciousness can substitute for erudition. He is sadly mistaken. On the other hand, watching him get ripped to shreds whenever he accidentally crosses path with anyone intelligent is one of the blogosphere's great spectator sports.
If we want to ensure that corporations don't band together with the government in the future to do things that are almost certainly illegal, but also don't become excessively fearful of litigation, the sensible compromise would be to require in the amending law:
ReplyDelete1) that the FISA lawsuits against the telecoms be filed only in federal court;
2) that all state claims be preempted by the federal law;
3) that a single plaintiff class be formed against each defendant company (i.e., all AT&T customers must be a single class);
4) that each class-action will have its case litigated in a single jurisdiction (preference being given to the jurisdictions of plaintiffs whose testimony merits cross-examination);
5) that defendants be granted a bench trial upon request;
6) that no settlements be approved, and all cases must be litigated either to summary judgment or a verdict.
In this way, we avoid frivolous and excessive litigation of the type that became rampant with securities law, while still preserving Americans' rights to sue for FISA violations. It will kill the lawsuits from plaintiffs' attorneys who are just looking for a quick settlement buck, and keep the litigation in the hands of the public-minded citizens and lawyers who are truly concerned about violations of their rights.
Such a regime would ensure that a corporation with serious doubts about the legality of a government request would not say yes to it immediately, but at least would obtain outside advice and at most would wait for an injunction before complying.
Finally, it is worth noting that the current legislation does not actually provide total immunity; lawsuits can be filed and litigated. What it does is pressure judges to dismiss lawsuits on "state secrets" grounds. But it does not require that they do so.