â€â€¦ telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. â€

i think there’s evidence that there was a time, early on, without an AG certification.

from USA TODAY:

Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA’s explanation did little to satisfy Qwest’s lawyers. â€They told (Qwest) they didn’t want to do that because FISA might not agree with them,†one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.

my bold.

btw, i don’t think this, if true, takes away from the bushco liability – it just means the AT&T et al. are not off the hook.

i’m not caught up on all the comments, so maybe this has already been discussed?

cboldt – is that â€not†intended? If so, how much do you think they did with out coverage docs from the govt.?

– cboldt – is that â€not†intended? –

Yes. I don’t think the government provided a letter with the contents specified in the Title III statute. In other words, if the facts came out, then, as a matter of law, I think the telcoms have liability.

Then comes their effort to shift liability to the government, who may well have crafted indemnification agreements and promises to pay for any and all legal defense, etc.

I see the privacy side of telecommunications as effectively a nationalized enterprise. But the government wants to create and preserve an illusion that it isn’t running a secret surveillance force. The P&L side is a bit more private, while being a regulated private industry.

– how much do you think they did with out coverage docs from the govt.? –

I think they had â€coverage docs.†I don’t think those â€coverage docs†are in a form that fits the Title III statute.

The NSA was operating pursuant to an EO, and the telcoms that cooperated had to somehow shield their shareholder side from the consequences of being found in violation of â€the law.†(They can argue that the EO is law too — setting up a contest between Congressional Law and the EO). â€Coverage docs†could be a secret indemnification agreement, as well as some sort of payments, disguised who knows how, to keep the books from becoming skewed.

Ok, got ya, that is consistent then.

– If per chance cboldt is correct and the telcos don’t have at least the CYA backup contemplated by the statutes –

I think they have CYA backup … I just think it takes a form other than a â€no warrant needed under Congressional Law†type letter.

I also think the CYA backup is itself a classified document. Shell game inside of shell game. But as you’ve noted, it isn’t the telcos who have ultimate liability — or at least they didn’t step into that position thinking they (and their shareholders) were â€alone and unprotected.â€

Imagine the shareholder suits on a finding of massive liability!

According to Morton Halperin, former Deputy Secretary of Defense whose own phone was tapped while he served on Kissinger’s NSC, one of the chief purposes of the FISA statute at the time it was drafted during the Ford-Carter years was to have AT&T (before its breakup) serve as a sort of private sector watchdog on any effort by the Feds to obtain domestic wiretaps without warrants.

The thinking by the FISA drafters was that Ma Bell would act in its own self-interest by doing everything it could to avoid potential civil and criminal liabilities, and would, if pushed to do anything questionable, itself take issues to the FISC (FISA Court) to review problematic requests.

I wonder what ever happened to that original intent of Congress? A grant of retroactive immunity for those Telcos that didn’t challenge The Program would obviously eliminate this deterrent and corrective purpose of the original law.

Has Congress lost its institutional memory, or did everything really change on 9/11? I can only speculate that there are aspects to domestic surveillance that some leaders in both parties, the White House, the Pentagon, and the Intelligence Community would rather the public never learn about.

– Has Congress lost its institutional memory, or did everything really change on 9/11? –

Those aren’t mutually exclusive. 9/11 amplifies whatever big-brother/centralization tendencies are already present. So do natural disasters.

Funny thing, this â€institutional memory.†The place it should be important is with the people, and the people lost it a long time ago. Hello Britney and Paris!

What were the programs where the press (back in the day of newsprint) was heavily infiltrated by CIA? Operation Mongoose or something like that? What’s to say certain AT&T â€employees†aren’t likewise endeared to a managed and manipulated society.

thanks cboldt – that makes sense. especially as QWEST was threatened with loosing future classified government contracts… and soon thereafter CEO Nacchio was charged (and eventually convicted) of insider trading. it took guts for QWEST to say â€noâ€.

The wornong doings of the past were Plame’s dad who worked at NSA. I guess everything he did there is okay now, except the whole program is blown.

Whatever the ass-covering motivations are behind this bill, the fear that the telcos would turn around and seek indemnity from the government if they get hit with a big judgment can’t be one of them. I don’t see how the telcos could plead a claim for immunity, unless the government expressly promised it to them, which I really doubt.

There are tort-based theories of contribution, but I’m not sure those theories would meet the exceptions to sovereign immunity set forth in the Federal Tort Claims Act.

I think that the government is less afraid of monetary liability than it is of EXPOSURE, which is what discovery and a trial on the merits would involve. Unless, of course, the telcos manage to get the cases dismissed on the â€state secrets†theory….

litigatormom – It actually turns out that much of the liability is specified by statute, or at least arguably is so I am not sure FTCA is as germane as you might think. Secondly, I am just hard pressed to believe that the telco lawyers didn’t do a lot better job on documents than people are giving them credit for. It is my theory that the Bushies are worried about both forms of accountability, monetary from the treasury and for their own exposure as wanton derelicts; with the far greater emphasis on the latter.

â€One surreality here is the combination of admitting the TSP (for your own good), and not using the legal justification for it (FISA + AUMF = legal) in defense of the suits.â€

Federal judges (especially in the 9th) are not proles. And there you have it.

Back on May 12, 2006, I wrote a diary on Daily Kos about a statement by Nacchio’s lawyer, Herbert J. Stern, who told reporters that Qwest refused to provide the NSA with customer records after deciding that the request violated the privacy law provisions of the Telecommunications Act. I was intrigued by who was giving Qwest better legal advice than the rest of the telcos seemed to be getting. I’m pretty sure that advice came from Stern.

Stern is a former US Atty, and he was appointed a Federal District Judge in 1973 by none other than Richard M. Nixon. Stern is known as a corruption fighter and â€is sought after to handle cases involving dishonest government practices†(quote is from an article about Stern in his alma mater’s online newspaper). Stern was also special counsel for the prosecution against Oliver North in the Iran-Contra legal proceedings.

I understand that there are those who may question Nacchio’s integrity, but I can’t see a lawyer like Stern representing Nacchio if he truly thought the man was a crook. Could this be another Donald Siegelman situation? I don’t know, but I do think Stern has the background to ascertain whether or not the NSA was overstepping its authority.

Hi, cboldt –

You’re thinking of Operation Mockingbird. Mongoose was the Bay of Pigs and poisoned cigars stuff. Anyway, you have a point about the mutuality of interest between the IC and the Telcos in indemnifying themselves for this FU.

This is particularly the case for NSA and its private contractors which in the past seven years have taken over many of the signals intercept and analysis functions once carried out by the Agency itself. One can say accurately that today that NSA is AT&T (along with Verizon, Lockheed-Northrop, CACI, and all the rest.) See, http://www.dailykos.com/story/2006/5/26/11367/6684 ; http://www.dailykos.com/story/2006/5/20/16437/4670

If it hadn’t been for the repeated â€intelligence failures†(i.e., policy failures) since Bush-Cheney took office, the public would likely have never learned a fraction of what’s come out about warrantless domestic surveillance, elint, and data-mining that started even before 9/11 (eg, ECHELON, Able Danger, Carnivore). See, http://thenexthurrah.typepad.c…..t-17473178 ; also, generally, http://www.truthout.org/cgi-bi…..i/48/17009

cboldt – Jeebus, you are not kidding on the damages calculation and allocation. If I read the complaints in NDCA correctly (and I remember correctly; both often shaky propositions) and I think it was the EFF and/or CRR I looked at; they were indeed alleging per each act per each relevant plaintiff. Huge numbers. I don’t know, I figure the money will work itself out; it always does. I just don’t want the legal and moral culpability bounced; I want the suits to proceed.

grayslady – I know of Stern. I don’t really know personally how the Nacchio deal played out. What I mused about above was what I heard as scuttlebutt from some folks around the criminal case; but I cannot vouch for it. Make no mistake though, there were a few accounting/options/or similar type of irregularities at Qwest. I don’t personally think they in any way support the way Nacchio was prosecuted and sentenced; but there were some issues.

Just a matter of clean up –
Rather, bmaz is persuasive that there is not direct liability on part of the telecoms (except as it relates to the spying that occurred in the 24 hours when Bush authorized it without DOJ, and therefore AG, approval).

There was more than 24 hours at issue. IIRC, no one at DOJ â€signed off†until AFTER the corrective measures that Bush said Comey could make were put into place.

Statutory construction 101. Where you have something like the telecom statute that makes wrongful transfers subject to penalty, human nature and business models like a bright line standard. How will I know it isn’t â€wrongful†and I am ok in taking this action is a very typical reaction. So lots of statutes (and some case law at times) creates what we call safe harbors where, if you do XY&Z you will not be held liable under the statute, despite its grey areas.

So the telecom statute has two safe harbors that bmaz has mentioned – one is the warrant and one is the letter form the AG. Now, the statute doesn’t say that those are the ONLY ways info can be handed over and not be subject to penalty. The statute is a bit like a mapquest roadmap, with the mapquest route highlighted. Here is a way that will get you from A to B

That doesn’t mean that there may not be other routes, though, but they take greater risks. So there are really two different things at issue when discussing cya documents or situations. One would be a CYA approach that uses something other than a safe harbor to take the telecom’s turnover of info out of the â€wrongful†category. The other would be a CYA approach that indemnifies, reimburses, etc. the telecoms if their turnover was found to be wrongful.

Now, keep in mind that while everyone has been talking about the $$$ damages, there is also a criminal element in the statute. Granted, while loyal Bushies run amok at DOJ, the focus has been more on soliciting the commission of crime than on engaging in investigation, prosecution and redress.

So – with that background, here’s my take. I’ve said that the Ashcroft show down couldn’t have involved an order that met the â€safe harbor†statutory requirements, because Comey testified in response to Spectre’s questions that the document he was asked to sign off on was not generated pursuant to any statutory authority. So add the Qwest story and Comey’s story (not that there couldn’t be documents other than the one involved in the Ashcroft showdown that might have been provided to the telecoms) and it begins to look very unlikely that the telecoms ever got a safe harbor letter or we can be pretty positive they never got a safe harbor warrant until, possibly, the short period of time when supposedly â€the program†was brought under FISA court supervision this year.

Even if they did have an AG letter, I argued elsewhere on where the safeharbor might breakdown, but still, assuming they don’t have that – what else do they have? Well, they may have something like an Executive order that they think could be used to be â€as good as†the safe harbors, or a finding of exigent circumstances, etc. – something that they think actually provides a defense on the wrongful front. Maybe it is that they don’t do any of the turnover themselves, they just responded to govt â€regulation†that allowed gov to set up its own switch stations to shadow theirs and access the telecoms info without their direct activity in turning over the info in the transmissions – all they turned over was info on how to put install a mirror switching station maybe? I’m not very techie, but some kind of parsing like that which the statute would not have contemplated bc it wouldn’t have contemplated such a massive, govt-type activity. [If I didn’t explain that well – I’m saying they may have an argument that runs like this: Statute says I can’t look at my daughter’s diary and give that info to Gov; but statute doesn’t say I can’t hand over to gov the key to her diary and show where the diary is and have a cuppa while THEY look through themselves]

So memos, etc. on those kinds of legal issues and/or agreements on who handles the info etc. would be one set of CYA docs that are non-statutory and that would go to the issues of $$ damages and criminal liability. Still, if the potential liability is massive, and in particular if you have another telecom (like Qwest) saying – better be careful boys, doesn’t pass the smell test – then I think telecom lawyers would probably require some kind of indemnification agreement, where if there are $$ damages, then the company is insulated. But then what about criminal charges?

Well, obviously if the AG is soliciting your crime, he’s not likely to jump on board with prosecuting you WHILE HE’S IN OFFICE, but then what?

This may be where the OLC opinions became pretty important to the telecom providers and why someone pulling strings at DOJ probably had a good laugh (in that mean spirited, spiteful way that torture supporters tend to laugh) over a guy who may have been unsatisfied with the criminal protections being targeted and jailed anyway.

In any event, the telecoms may have been sold the bill that, as long as there is an OLC opinion authorizing this – not only will WE not prosecute you – our fellow criminals – but no one else in DOJ will ever prosecute you, bc the OLC opinion will be treated like the Law of the Lawless (although not necessarily binding in the civil matters so the indemnification would still be required for those).

Then the OLC opinion appears about to be pulled.

No criminal coverage now if they get shot down. The â€in the know†conspirators have something to think about – in GOV as well as at the telecoms.

Obviously, if the Chiquita case is any standard, it takes something pretty darn egregious to make the Bush law firm, fka DOJ consider charges against individuals with the right Administration connections, but there you go. There might be a time when there would be someone quite a bit different at DOJ and that time (they had to particularly be thinking this in 2004) might come while Statutes of limitation had not expired. And keep in mind, as a part of the horizon line, that Arar’s lawsuit had just hit in January prior to the hospital showdown – – so victims of the DOJ crimes were starting to show up here and there.

IMO, the telecoms probably did not have any safeharbor protections and probably went with a layered defense approach A) some kind of inane argument that what they were doing was not technically – if you parse well – covered by the liability requriements of the statute or there were exigencies or other arguments they could structure but that might well be losers, particularly the longer the program drug on with knowledge and participation; B) an indemnification from Gov in case they were found liable for civil penalities; and C)and OLC opinion to forestall any criminal prosecutions.

The OLC and indemnification are probably classified. If a part of the parsing prong is something like reliance on an Exec order or similar doc other than a safe harbor doc, that doc is probably classified as well.

So IMO, those are some of, but not all of, the kinds of threads that would need to be separated. fwiw

Folks

Why is it not likely that the AG approval was the DOJ authorization–the one that Comey refused to sign? That is, we know the AG signed off on the program every 45 days. Would that not count as authorization?

Well, story leaks indicate that the telecom issue was at the center of the showdown, so IF that was true (big if with partisan and personal reaons supporting the leaking going on) then it would be inconceivable that Comey would not know of the statutes and the safe harbors. EVEN IF telecom issues were not at the heart of the showdown and the leaks are erroneous plants, still, by the time he testified to Congress, Comey would 100% have known about the statutory safe harbors just give all the issues that have come up.

So with that – – he flat out says that what he was signing off on had no statutory basis. IMO, and as much as I am not a fan – – he wouldn’t have gone into Gonzo cutesy land on something like this, where things will out, eventually, and reputations will stand or fall and where being too misleading and parse-y could eventually lead to charges for misleading Congress. For that matter, I think Spectre had the telecom legislation firml

Exchange:

SPECTER: Well, Mr. Comey, on a matter of this importance, didn’t you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I…

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I’m quite certain that there wasn’t a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

I don’t — I think the administration had sought the Department of Justice, the attorney general’s certification as to form and legality, but that I didn’t know, and still don’t know, the source for that required in statute or regulation.

You can parse a lot and try to come out with some way where that is consistent with the 45 day renewal including the statutory safe harbor – – but I don’t buy it and as much as I am not a fan, I do think from an ethical and practical matter he’d do better than that.

Mary, I know you are not a fan, but a possible explanation for what you are seeing is that Ashcroft was/is ’in the Kingdom,’ and Comey wasn’t/isn’t.

This is just speculation.

Ashcroft sold his soul to BushCo, and the price for that is Blind Loyalty, Unquestioning Obedience and Total Secrecy – possibly sworn-to on pain of death.

My guess is that the DoJ Professionals caught wind of the 4th Branch/Kingdom and started probing to assess the beast. It must have taken years, but they finally figured out that the Legal Opinions supporting The Program were compartmentalized away from the Certifications that Ashcroft was pledging-to like an obedient but mindless minion every 45 days.

Comey and crew went to Ashcroft and confronted him with their research
– the OLC Opinion – and convinced him that his regular signings were being made with no understanding of the liabilities he was incurring – just like the Telecoms were doing.

Ashcroft couldn’t directly challenge the King – as a 4th Branch member, he would have been violating his oath of Blind Loyalty and Unquestioned Obedience – which could have been bad for his health.

So, he and Comey ’cooked-up’ the transfer of power to Comey during the Gall Bladder Surgery (possibly scheduled to overlap the 45-day Certification Window) as a means of confronting Bush and Cheney over the Legal Rationale behind The Program – which No One outside the 4th Branch, and only a few within, has ever seen.

Bush and Cheney’s over-riding Goal is to Never have to defend their rationale in Court. Courts are actually Kryptonite to BushCo.

So, I’m saying Comey and the Good Guys may have deduced – same process we use here – that Ashcroft was cleverly duped into signing every 45-days for the liability of a Program that he actually didn’t understand much, if anything, about.

Comey could be looking un-ethical to US, mainly because he was kept ’out of the loop’ by design. He did the best he could when he confronted Gonzo, Card, Cheney, Addington and Bush the night of the Hospital Visit, but somehow Bush turned him away – and that’s when Bush put DoJ on Lockdown.

I’m still confused.

The telco lawyers, who are generally thought of as real smart cookies, get a phone call/visit from Fredo and his homies that goes something like this:

-Hello AT&T? We want to wiretap all foreign-to-foreign stuff running through your switches here in the US, and we also want to wiretap a whole bunch of foreign-to-US stuff running through your US switches. Stuff like phone calls, email, website access, the whole ball of wax.

-Hey, sounds great! I assume you have the FISA warrants from the FISC? Just drop ’em by and we’ll get moving on the wiretaps.

-Ahmmmm…no…we got no FISA warrants, but look over there at this shiny thing. The Preznitwit and the Vice Preznitwit say its Ok.

-Ahmmmm…wait just a feckin’ sec here Fredo. The FISA law is pretty feckin’ clear. No warrant, no wiretap. Period! Folks who do wiretaps without warrants go straight to jail. That was the whole purpose of the feckin’ law, right Fredo?

-Ahmmmm…it’s for our National Security and I can promise you lot’s of hugs and smooches.

-Ahmmmm…oh well in that case, Ok. I’m shore willing to go to jail for your hugs and smooches.

Now really I hope the learned folks here can better tell us just how some supposedly real smart cookies like telco lawyers could possibly ignore the blunt, in-your-face, black-and-white, means-nothing-else reading of FISA law and to somehow accept just hugs and smooches.

As all know, IANAL and it seems a real feckin’ stretch to imagine any smart cookie telco lawyer could in good conscience weasel themselves around FISA without thinking he/she was playing Russian Roulette.

And perhaps it is as simple as that. Gambling that you won’t go to jail with Big Brother in charge and backing your play.

But as Mary and others have pointed out, the DOJ/Admin/Congress you got today ain’t necessarily the DOJ/Admin/Congress you got tomorrow.

mad dogs – i don’t think this was a lawyer to lawyer request. i think it was NSA to CEO.

Selise and massacio – No chance telco lawyers were excluded. This isn’t the first time the telcos have been to the rodeo. Telcoms have been working hand in hand with the DOJ, NSA, CIA and other law enforcement and governmental agencies for decades on wiretapping, trapping and tracing, spiderweb analyses and other goodies. Granted this is bigger and badder than before, but it is still analogous enough that they are unlikely to have been totally duped or snowed.

The former Senior DOJ attorney in charge of FISA application and dealing with the FISA Court, James Baker, has testified that there was no problem with the FISA process it was a good and useful tool, it was never a hindrance to foreign-foreign collection and there was never any time problems in obtaining the warrants the time was in doing the investigative job properly. Pretty much point blanetedly said Bush and McConnell are liars and that EW, cboldt and bmaz were right.

http://www.tpmmuckraker.com/archives/004225.php

So, the question becomes whether a courtroom is a better investigative tool than congressional investigation and hearings.

Certainly either could be public or secret.

Certainly the courtroom is more controlled by law and procedure, but the investigative aspect of it would probably vary quite a lot from one case to the next.

Congressional investigations are obviously politically tained, but sometimes that smell of blood in the water can help.

Which is better for this case?

I still think any telcom which helps the government in a time of war is going to be punished less than the full extent of the law. But, if they did something they should pay. Where in between is to be determined in part by what they offer during an investigation.

The President can always commute any sentences, no?

Mary said: Mad Dogs – I think, reducing down what I had above, that there was likely an argument the telecoms could make that they were not really involved in the interceptions, bc as Mark Klein seemed to indicate, the NSA built and staffed its own rooms and from that point forward probably proceeded without a lot of direct involvement by the telecoms.

Part of this is probably true from what I’ve read via EFF’s reporting (I’m a techie, so I eat some of this stuff up *g*) of the stuff that went on in one of Pac Bell’s San Francisco switch locations.

However, and this kinda nullifies your central point, the telcos have very high and strict premises security, and the notion that the US Govt. could just waltz in with a bunch of comm monitoring equipment and cabling is not viable.

The telco would, at some level of the organization, to have had explicit involvement in discussing the engineering requirements with NSA techies (or contractors as is much the case these days, and perhaps even former telco techies now working as contractors) since the telco’s lifeblood was having a â€needle†shoved into its arm so to speak.

And additionally, there would have had to be â€authorizing†conversations between the telco and the government before the engineering discussions ever occurred.

Again, the telco could not plead ignorance.

While I did enjoy your analogy of the â€diaryâ€, I’m not sure it would pass the credibilty test in front of a jury.

But of course, we ain’t nowhere near a jury and perhaps never to be so if as reported the Dem Congressional Aides are correct.

I would make one final point. Knowing the telcos, and knowing something about my own species (no, not Mad Dogs LOL!), I think that it is a very strong probability that the telcos did indeed get some sort of US Govt.-supplied paper as a shield to their obvious breaking of the law.

I simply cannot fathom how any telco employee (CEO, lawyer, techie) could risk their own personal freedom without such a thing. Any thought otherwise, doesn’t seem tenable.

bmaz and mad dog – i meant only the initial request was probably NSA to CEO and not AG to telco lawyer. i’m sure the lawyers were all involved.. but it could make a difference if the first they hear of it is from their own CEO asking them to find a way to make it work.

I know I’m coming to this discussion late, but I think the answer to this riddle may be that the Telcos aren’t worried about liability under FISA, but rather under some other statute (such as the Communications Act, Stored Communications Act, etc.). They probably had an AG authorization for the actual interception of communications, but they may have been relying on some sort of consent theory or strained reading of the law in handing over phone records. Remember that the whole Qwest story was about phone records, not wiretaps. I think there are several aspects of this program that required Telco cooperation and they may have their greatest exposure with respect to activities that have nothing to do with FISA. FISA reform may just be a pretext for granting broad-based immunity.

I know I am a broken record here, but trying to form a hypothesis on some interplay of the Qwest bit with all the others is not sound. While the Qwest set of facts is certainly valuable and interesting, it should be considered mostly as a stand alone. Qwest is an outlier to what we are trying to reason through for a number of reasons.

A.L. – The telcos are worried about liability from anything and everything. The telcos would be tickled pink not to have to have to deal with the litigation and embarrassment, in spite of the fact that they would come through it ok. But the telcos didn’t just cover themselves under FISA and then fall off the turnip truck on other exposure; you have got to be kidding me. And FISA is indeed a pretext for granting broad based immunity; immunity that will save the telcos a lot of hassle and bad press (but not that is of ultimate danger to them); but more importantly immunity to cloak and shut down inquiry into the real malfeasants in the Bush Administration, where lies culpability and liability beyond the pale. So sure, the telcos have a vested interest in obtaining immunity (who doesn’t; immunity is not just a get out of jail free card, it is a don’t even go to court card); but the critical point is that they are not in danger of going under or whatever tragedy is being sold as the compelling basis. In spite of the fact that telcos have something to gain; the push is not about them, it is about cover for BushCo. What, is this one of those Condi Rice â€Who could have predicted†moments; how could anybody have foreseen trouble ahead for the telcos? If the Bushies were concerned that the telcos needed statutory immunity, why are they seeking it only now? Bipartisan groups of congressional leaders approached the Whit House about crafting all kinds of things; literally offering to help. They were turned away with a sneer and Cheney/Bush stating â€We’ve got what we needâ€. Concern about telco liability from the Administration is nothing but a giant ruse; they don’t give a tinker’s damn about the telcos or anybody else, they are serving themselves.

Oh, and Mad Dogs at 21:35: what you describe actually tracks what Kurt Opsahl and the EFF lawyers, as well as their ATT witness/affiant Mark Klein have alleged.

Mad Dogs – When I say that what I mean is that they effectively ARE the NSA. They are acting as the express agent of the government under your question assuming they have, as we have been discussing all day, plausible conduct and cover.

This thing could turn on a single dropped dime, and I’ll bet there’s a lot of change jangling out there.

Imagine if a document shows-up with Miers advising Gonzo, Monica and Rove that Bush wants ’that pest’ Fitz on The List?

What if the Hospital Visit/Crisis was precipitated by the discovery of no-warrant domestic surveillance ’targets’ like all Politicians (Dem and Rep), the Media, Rich People, DFHs, etc?

Proof the ’04 election was stolen in Ohio?

Pictures of Bush partying with Abramoff? Gannon? a secret Marianas stop-over?

Someone from the ’inside’ comes forward and can show that they took a ’Loyalty to King Bush Oath’ as part of getting their Government job?

Could be any of a thousand things from any number of sources…let’s hope they come forward soon.

Bmaz,

We discussed QUEST in previous posts. But I have more questions for you (and I hope they make sense).

I understand your point about not involving QUEST in the bigger picture/question at hand. However, the one point I probe in regards to QUEST is, what industry standard is used by telecoms wrt the involvment of their lawyers? Does QWEST show the industry standard import and praxis of the corporate legal representation on telecom-government interplay? Would it not be â€standard†practice , no matter what the bigger question for BUSHCO immunity is, that telecom lawyers were required to- for the corporation’s sake and their customers’ – weigh in on any privacy issue presented to them by the government? Does the QWEST history make that point? Thus, pointing a finger at foundational telecom praxis and the â€bigger picture question†in terms of the other telecoms and the reality of acting in â€bad faithâ€?

KLynn – Both my belief and experience is that telcoms don’t breathe without the involvement of their counsel, whether it is Qwest, ATT or anybody else. As far as a I can tell, Qwest just ended up in a different posture than pretty much all the other telcos because of the corporate issues that were roiling in the company independent of their issues on wiretapping. They always have their lawyers involved; this would be especially so in relation to privacy/snooping issues. As several above, including me, privacy/snooping issues were not exactly something new for them to be encountering.

Mad Dogs (I had a Black lab with the singular version of that name):
However, and this kinda nullifies your central point
I’m not sure, but I think from reading your post you interpreted what I was putting up as what I thought might be a â€winner†for the telecoms, but that isn’t what I meant.

I was trying to say that as the telecom lawyers got involved, they would first want some kind of argument (even an inane one) that the statute (such as 18 USC 2511) didn’t apply and I was giving that as an example of some way they might get to that point. I’m non-techie, but if, as you seem to indicate:

Part of this is probably true from what I’ve read via EFF’s reporting

then I’m thinking that may well be a path they went down. I absolutely agree it doesn’t begin to pass the smell test! I’m just trying to spec on the kinds of defenses they may have structured; I don’t buy any of it – they are guilty as snot.

They would absolutely have had to have knowledge of what was going on, but the statutes aren’t really worded well to make having knowlege that Gov is breaking the law (without their per capture/intercept/access assistance) a violation – I don’t think any of the statutes contemplated such a massive, rogue operation as the Executive Branch criminally co-opting the NSA and highest levels of DOJ to split off everything into a master carrier that could scoop up at will and without legislative or judicial approval.

But it does help them with an argument on the statutory damages â€per eavesdrop†or â€per access†(for stored emails) issue – because they aren’t involved after the station was set up, if I understand correctly. (Although I do wonder how the stored email part might work.) Do I buy those arguments? Nah. But once they had something that could at least be structured, even without much credibility, they then get a corrupted Office of Legal Counsel in the Dept fka Justice to issue a classified opinion that all the eavesdropping is being done by the govt, not the telecoms, according to the DOJ’S interpretation of the statute. So DOJ is saying, â€hey, we’re the ones breaking the law, not you, oh, and sovereign immunity – nanner nanner to the American peons who aren’t part of OUR crime family.â€

Ok, the actual OLC opinion might use a little different language than that, but getting an OLC opinion that they – the telecoms – aren’t doing the intercepting/accessing and therefore aren’t violating the statute, they (telecoms) would posit, buys them out of EVER having to face criminal liability. And Gov is admitting that it is the party at fault (but may have immunity) for civil damages if they are ever an issue.

The history of OLC has been that it acts as the final word in DOJ and successor administrations have typically treated OLC decisions as binding. If that tradition survives, it will be a travesty. The whole office – even in Goldsmith’s hands – has been nothing more than a repository for loyal Bushies, who pen his desires.

While I did enjoy your analogy of the â€diaryâ€, I’m not sure it would pass the credibilty test in front of a jury.

I sure hope it wouldn’t – it’s kind of a Phil Spector, â€I just went and got the gun, put the bullets in, maybe put it in her mouth, but hey – SHE KILLED HERSELF†type argument.

To top things off, I’m guessing that the telecoms never really thought about some of the states with less co-opted prosecutors coming after them. I think fondly of New Jersey on that front. *g*

So the layering of defenses might, for example, be an argument that the statute doesn’t apply to what they did bc they weren’t the ones doing the intercepting (with an OLC backup and maybe admission that interception decisions would be all gov without telecom involvement); an argument that even if the statute does apply to what they did, what they did wasn’t wrongful bc even though it wasn’t under a safe harbor, it was done in cooperation with the Unilateral (not unitary) Executive in a time of war (with an OLC backup); an indemnity agreement from co-conspirators in gov; and stamps of classification everywhere on everything.

All that is spec, but I’m sure if and when things ever see sunlight, there will be layered defenses. Not that any of them are all that good, but layers. I think the â€massive liability†concept probably stems from the ’what if’ ever single item run through the NSA’s special room was deemed (and it should be imo) an â€intercept†and/or if that room allowed them to access stored emails as well, if each all of those emails made available were accesses. That would start to get pretty daggone massive, even if NSA would continue to try to claim (with a straight face) that after everything was routed to it, it only peaked and probed through SOME of it.

This goes to what cboldt has said above, †communications carriers may essentially be â€nationalized,†or a de facto arm of the government†I think that may be it exactly and that may be what Congress is about to bless, retroactively. Not that any of them will bother to actually find out what they are blessing or how it can be misused and abused – – bc, of course, IF THE PRESIDENT (or major corporate campaign contributor) DOES IT, it’s not a misuse or abuse, is it?

A.L., I haven’t really thought that they were mostly worried about liability under FISA and I’ve thought most of the discussion here was about violations like 2511, 2701 etc. It’s just that one of the safe harbors for the tapping was an AG certification that no warrant was required under FISA and that is the pathway for them to claim that they might think a warrant was not required – about the only one I can think of. You are right, though, about a lot of reference being to banked information and some lame telecom references to customer waiver language in their agreements.

I do think that emails are a big part of the whole equation. EW has had some really interesting posts on possible metadata uses and other aspects and they have to have access to all of that first.

But Mad Dogs – back to your point, while I think that normally #1 of your possibilities might be the more likely scenario, I do think the possible criminal violations shift over to making #2 more viable (and hey, no one ever tracked down all of that missing Iraqi 9 billion, so there could have been some off the books walking around money for a deal *g*) IIRC, Klein mentioned some internal advertising for inhouse people to take a classified job working for NSA and seemed to indicate that some in house people ended up switching over and working in the private rooms. But I’d have to go back and re-read.

Thanks for the tech stuff Mad.

Mary at September 20, 2007 at 11:54:

I do find your â€layered defense†theory tenable. Surely an attorney recognizing a probable poor outcome for a client would make the best of that poor situation by constructing as many impediments to the opposition’s case as possible, even if the endgame was still likely to be defeat.

One could still hope that your opponent might get hopelessly entangled in one of the many roadblocks and self-destruct.

Or as one might say in football (and many other sports): â€If you ain’t got any offense, you best be playing a real mean defense.â€

â€There must be a reason why they’re including that in…†Yeah, and again, it sure ain’t out of their abiding concern for the telcos. They have devised a way that such a refusal now makes it easier for them to get a warrant or something. It benefits the Administration somehow, some way……