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Where There's Smoke ... Part IV How Close is Too Close?

We are on the verge of seeing something we don't see too often: a possible filibuster in the US Senate from a Senator who is also a presidential candidate. Will this conflict actually come to this?

If it does, it should shine a bright light on the role that telecommunications companies play in national security, for the issue at hand is the cooperation that AT&T and Verizon gave to the Bush administration when they released thousands of private phone records of American citizens without the required court orders.

Interestingly, the third telecommunications "giant," Quest, refused to cooperate and turn over customer records. But here is where it gets more interesting...Quest's former CEO Joe Nacchio, not normally a darling of civil rights protectors, has claimed in other court documents in another suit that his company's refusal to cooperate with the feds ultimately led to the loss of lucrative federal contracts in retaliation ....as if there was some sort of quid pro quo at work here? Huh?

Hmmm, this could get more and more interesting, because the stakes are so high, the issue is becoming ever more public, and it may well result in public reporting of issues that normally stay in the background - namely, the back room agreements and operations of telecom giants working with the federal government.

So, let's recap... from the left-leaning and popular blog of attorney Glen Greenwald

Just think about what is really happening here. AT&T's customers sued them for violating their privacy in violation of long-standing federal laws and for violating their Fourth Amendment rights. Even with the most expensive armies of lawyers possible, AT&T and other telecoms are losing in a court of law. The federal judge presiding over the case ruled against them -- ruled that the law is so clear they could not possibly have believed that what they did was legal -- and most observers, having heard the Oral Argument on appeal, predicted that they will lose in the Court of Appeals, too.

So AT&T and other telecoms went to Washington and - led by Bush 41 Attorney General (and now Verizon General Counsel) William Barr, and in cooperation with their former colleague, Mike McConnell - began paying former government officials such as Dan Coats and Jamie Gorelick to convince political officials to whom they give money, such as Jay Rockefeller, to pass a law declaring them the victors in these lawsuits and be relieved of all liability - all based on assertions that a court of law has already rejected. They are literally buying a judicial victory in Congress - just like Carothers warned that third-world countries must avoid if they want to become functioning democracies under the "rule of law" ("Above all, government officials must refrain from interfering with judicial decision-making"). AT&T, other telecoms, buy victory in lawsuits

Here's the "money quote" from Federal Judge Vaughn Walker ruling on Tash Hepting et al, Plaintiffs vs. AT&T Corporation et al, Defendants:

Because the alleged dragnet here encompasses the communications of "all or substantially all of the communications transmitted through [AT&T's] key domestic telecommunications facilities," it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T's alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because "the very action in question has previously been held unlawful," AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal. Accordingly, the court DENIES AT&T's instant motion to dismiss on the basis of qualified immunity.

Upon learning that a pending bipartisan compromise on the reworked FISA bill that included granting retroactive immunity for telecommunications companies would soon be coming out of the Senate Intelligence Committee, Democratic Senator and presidential candidate Christopher Dodd said he would place a "hold" on the bill to fight the immunity provision. An explanation on "putting a hold on a bill" here.

But there's more - it seems that Senate Majority Leader Harry Reid is not altogether pleased with this development and may not support the "hold" tactic of his colleague and fellow Democrat, which would be a gross violation of Senate protocol and could lead to an effective call of a bluff, having Sen. Dodd actually filibuster the bill if he wants to prevent it from going out to the floor for a vote. Say What? Huh? Holds typically are honored in the Senate regardless of party affiliation, and filibusters are usually the work of the minority party - seems that Down is Up in the Alice in Wonderland world of the Senate.

This kind of crap is a big part of why Congress gets an historically low approval rating of 11%. It's so confusing, and the Democratic Majority Leader Sen. Harry Reid putting his own colleague in jeopardy? I sure don't get it.

But this controversy has led to news items like this, Wired: Democratic Lawmaker Pushing Immunity Is Newly Flush With Telco Cash, where recent political contributions by executives from Verizon and then AT&T to Intelligence Committee Chairman Senator Jay Rockefeller (D-W Va) are detailed, implying a connection. It all is puzzling ....

And then there's these curious comments from Former Quest CEO Nacchio, mentioned above, described in full below...

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

Details about the alleged NSA program have been redacted from the documents, but Nacchio's lawyer said last year that the NSA had approached the company about participating in a warrantless surveillance program to gather information about Americans' phone records.

In the court filings disclosed this week, Nacchio suggests that Qwest's refusal to take part in that program led the government to cancel a separate, lucrative contract with the NSA in retribution. He is using the allegation to try to show why his stock sale should not have been considered improper.

Nacchio was convicted for selling shares of Qwest stock in early 2001, just before financial problems caused the company's share price to tumble. He has claimed in court papers that he had been optimistic that Qwest would overcome weak sales because of the expected top-secret contract with the government. Nacchio said he was forbidden to mention the specifics during the trial because of secrecy restrictions, but the judge ruled that the issue was irrelevant to the charges against him.

Nacchio's account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts.

The allegations could affect the debate on Capitol Hill over whether telecoms sued for disclosing customers' phone records and other data to the government after the Sept. 11 attacks should be given legal immunity, even if they did not have court authorization to do so.

Spokesmen for the Justice Department, the NSA, the White House and the director of national intelligence declined to comment, citing the ongoing legal case against Nacchio and the classified nature of the NSA's activities. Federal filings in the appeal have not yet been disclosed.

In May 2006, USA Today reported that the NSA had been secretly collecting the phone-call records of tens of millions of Americans, using data provided by major telecom firms. Qwest, it reported, declined to participate because of fears that the program lacked legal standing.

In a statement released after the story was published, Nacchio attorney Herbert Stern said that in fall 2001, Qwest was approached to give the government access to the private phone records of Qwest customers. At the time, Nacchio was chairman of the president's National Security Telecommunications Advisory Committee.

"Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request," Stern said. "When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act."

Stern could not be reached for comment yesterday. Another lawyer for Nacchio, Jeffrey Speiser, declined to comment on whether the call-records program was the program discussed at the February 2001 meeting.

In a May 25, 2007, order, U.S. District Judge Edward W. Nottingham wrote that Nacchio has asserted that "Qwest entered into two classified contracts valued at hundreds of millions of dollars, without a competitive bidding process and that in 2000 and 2001, he participated in discussion with high-ranking [redacted] representatives concerning the possibility of awarding additional contracts of a similar nature." He wrote, "Those discussions led him to believe that [redacted] would award Qwest contracts valued at amounts that would more than offset the negative warnings he was receiving about Qwest's financial prospects."

The newly released court documents say that, on Feb. 27, 2001, Nacchio and James Payne, then Qwest's senior vice president of government systems, met with NSA officials at Fort Meade, expecting to discuss "Groundbreaker," a project to outsource the NSA's non-mission-critical systems.

The men came out of the meeting "with optimism about the prospect for 2001 revenue from NSA," according to an April 9, 2007, court filing by Nacchio's lawyers that was disclosed this week.

But the filing also claims that Nacchio "refused" to participate in some unidentified program or activity because it was possibly illegal and that the NSA later "expressed disappointment" about Qwest's decision.

"Nacchio said it was a legal issue and that they could not do something that their general counsel told them not to do. . . . Nacchio projected that he might do it if they could find a way to do it legally," the filing said.

Mike German, policy counsel for the American Civil Liberties Union, said the documents show "that there is more to this story about the government's relationship with the telecoms than what the administration has admitted to."

Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, said: "It's inappropriate for the government to be awarding a contract conditioned upon an agreement to an illegal program. That truly is what's going on here."

The foundation has sued AT&T, charging that it violated privacy laws by cooperating with the government's warrantless surveillance program. Former CEO Says U.S. Punished Phone Firm - washingtonpost.com

Posted on October 21, 2007 at 11:25 PM

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