“Or His Designee”
I noticed something really funny in the AT&T response to Dingell and friends that MadDog linked to. In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.
The same principle–that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive–underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General’s judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit. [emphasis AT&T’s]
Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,
Do you see the difference? AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you’re wondering, 2518(7) doesn’t say anything about "designees" either. Update: yes it does–though it specifies that they have to be investigative officers.)
Of course, we know why AT&T has unilaterally rewritten the law. That’s because, as SSCI kindly told us, AT&T conducted its illegal wiretap program based on the authorization of Alberto Gonzales, then White House Counsel.
The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.
The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]
Of course, AT&T is not alone in rewriting the law to make it legal for the President’s lawyer to authorize illegal wiretapping on American citizens. The SSCI did so themselves.
Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii). [my emphasis]
"Certain other officers" … "or his designee." Neither of those phrases appear in the law, of course.
AT&T and SSCI have all but admitted that AT&T broke the law, engaging in wiretapping Americans based on the certification of Bush’s lawyer.
And now Congress wants to retroactively make such wiretapping legal.
EW! You’ve done it again. So, where do we go from here. The weasels are are writing legislation that wouldn’t stand up in a court of law. Can one challenge the legality of a law before it becomes law? Is there a process for that? Such flim-flammery cannot be allowed to succeed.
Sounds like the patriotAct language.
When was the last time I thanked you, ew, for the work done on this blog? Uhhh…..
I forward emptywheel post links to all on my addy list every day.
For all you are doing, for all the hours of digging & suberb analysis, many thanks.
Should be superb in #3. More coffee needed. Oh, forgot, donation is on the way to FDL
I wonder which David Addington helped AT&T rewrite that statute, thinking it was a signing statement?
A related point illustrates the asymetrical cyber-warfare conducted by this administration. It may have decreed that Verizon’s Quantico node not be able to monitor which government entities listen in or copy its data flow. But DHS wants to impose monitoring on all Internet traffic to and from government websites.
Want to urge your Congresscritter to oppose stripping us of our Fourth Amendment protections? File your taxes online? DHS will have your number. Wonder why it’s taken six months to process a routine passport or Social Security request? No worries, DHS will know when you wrote.
The administration is exhaustively working to set in concrete the tentacles of its surveillance state, on the rapidly decreasing probability that a Democratic successor may want to cut them out.
(h/t EPIC)
http://epic.org/privacy/internet/
http://homeland.house.gov/Hear…..asp?ID=118
CSM at 1: “Such flim-flammery cannot be allowed to succeed.”
Why not ? Review how “corporations have rights of persons” became law. Once SCOTUS acccepts flimflamery as precedent, it has force to trump reason.
It would be hard to find a White House “news” release containing more lies than does Myth/Fact: Five Myths About the House’s Failure to Give Our Intelligence Professionals the Tools They Need to Monitor Terrorists Effectively.
Briefly scanning the 3 letters (AT&T, Verizon, and Qwest) I was struck by how each company took a different approach in their response. AT&T’s letter could have easily been written by Addington. I wonder how many AT&T attorneys are members of the Federalist Society?
Verizon addressed each question point by point, but they used the curious device of “lawful requests”. Two things struck me about that: 1) that they received unlawful requests, hence their need to use that distinction, and 2) despite the imposition of state secrets, they are free to discuss their response to lawful requests, it’s just the unlawful conduct that may not be discussed.
Both of the aforementioned letters were relatively lengthy. In contrast Qwest went with a short 2-pager, that said in essence “sorry guys, state secrets, our lips are sealed”. I found that one the most interesting as Qwest is not even making an attempt to legitimize the requests of the executive branch. They make it plan that they are prevented from discussing the questions asked by the Representatives. And they have no other explanation or defense.
Thanks MadDog for links, the comparison is telling.
The illegal nature of this argument is contrary to any basic understanding of administrative law, which I might add is full of exceptions where “shall” in a statute can mean “maybe” that recognize the complex nature of modern administrative practice. The use of “designee” is significant to me, it suggests to me that they are trying a half-hearted argument that the AG power is one of the office, not of the personal judgment and power of the occupant of the office, which is an argument that has been recognized by courts in certain contexts. The legal strategy would be to suggest that the statute contemplates that the AG is a very, very busy man, and that this is sort of paperwork that would be able to be issued in his name by others. Factually, I guess that they are suggesting that there was some kind of implied delegation of the power to AGAG by Comey or Ashcroft or even Fourthbranch. Problem is, this statute does not have the kind of wording you would use for this kind of argument to succeed. The delegatus non potest delegare maxim of statutory interpretation, the non-delegation doctrine, deals with the extent to which a power entrusted to an authority may be exercised by another entity. De Smith et al, the major authors in the Commonwealth (and elsewhere) on admin law, state as follows:
A discretionary authority must, in general, be exercised only by the authority to which it has been committed. It is a well-known principal of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another….It applies to the delegation of all classes of powers (London, 1995, 357-58).
Even if they are trying to argue that the power was given to the AG “minsterially”, as opposed to personally, and is therefore capable of delegation internally, I suppose it goes without saying that the WH Counsel is not part of the Department of Justice, even within the mysterious realm of the Fourthbranch chimera of executive and legislative. Even if it is argued that the powers of the AG are delegable under this provision, the delegee must also be under the limitations of the powers that are imposed on the delegator, which are derived from the Attorney General and must therefore be within his jurisdiction.
I apologize for the lengthy legal argument – but I think it is important to set out these basic principles of law as many times and as directly as possible, to highlight the absurdity of the claims being made as contrary to hundreds of years of established law, and which apparently are crafted for the ears and pens of gullible journalists who “have neither the time nor the legal background” to look into the matter, or call one of the lawyers who works for their massive corporations.
I hate to pick nits, but it looks to me that the section they cite does specifically include people designated by the AG. From the link you provide:
Am I missing something subtle, or are they in fact correct here?
–MarkusQ
Since when is the White House Counsel an investigative officer?
Also, one of the reasons I raise this is because AT&T would have us believe that the AG and acting AG, after having refused to certify the program themselves, designated Gonzales to do so. It’s possible, I guess, but I doubt it.
More importantly, it raises the question of whether AGAG SAID he had been designated the official certifier. Now that IS possible, which would seemingly make AT&T’s wiretap legal. But, damn, if they did that (and if Comey subsequently lobbied for the telecoms to get off), we really really ought to know about it.
EW – for the reasons I give above, I don’t think it is legally possible for Ashcroft or Comey to have “designated” Gonzales, or “delegated” the power to him – there is a significant legal distinction in those words, “delegate” must be made within the jurisdiction of the delegator where it is permitted by a reasonable construction of the statute, and “designee” implies that anyone could receive the power, which is far beyond any reasonable interpretation of this provision. They know “delegate” won’t fly as a matter of law, hence “designee” – which wont work either. It would be fun to see if Gonzales bullshit the telcos and told them he was the “designee” or “delegate”, and if so who designated him – W? Cheney?
and what constitutes a delegation or designation? where’s the documentation?
Or is this a secret EO loaded up with pixie dust?
In the corporate world, delegations and designations aren’t nebulous; they can’t be under SarbOx. So much for the CEO presidency.
As with declassifying on the fly, Cheney’s specialty, or gutting Executive Orders, this administration claims the right to exempt itself from the law first, and put it in writing later, if ever. The reverse also becomes true. This policy makes otherwise public laws and regulations secret, since no one will ever know what the law is until the administration claims you’ve broken it. And we thought we were only importing goods from China.
Of course the wrinkle in that logic that Congress fails to attack is that the administration has been making law, taking a power for itself that it was never given and never, ever intended to have. Only Congress can make law, and Congress should be enforcing that boundary firmly in order to preserve this power for itself.
Forgive me for being slow this PM. You’re saying designee is broader, legally, but still wouldn’t work here?
And yes, I would very much like to know if Gonzales self-designated himself AG in AShcroft’s absence, in spit eof the many contemporaneous news reports saying Comey was the acting AG.2
“Designee” covers a broader category of potential recipients of the power in question than “delegate” – both are agents of the statutorily-authorized person, but a “delegate” implies a sort of deputy or subordinate of the AG, and “designee” could include anyone, like the donee of a power of attorney. I don’t think either will work in this situation, as there was no express authorization to the AG in the statute for either “delegation” or “designation”. I think “designee” was used to get around the obvious lack of connection between Gonzales as WH counsel and Ashcroft/Comey as both the personal occupants of the AG chair, and the AG office itself.
I think this letter is a corollary to the standard Rove tactic of never admitting or putting on record any adverse event, be it a fact or sin of omission or commission.
“Political power means never having to say you’re sorry.” Which means muddying the water whenever possible. Examples include putting on record lies, mistakes of fact, opinions-as-fact, and misinterpretations of the law. For the latter, I had in mind pretty much everything Victoria Toensing said about Valerie Plame.
Not sure that would make it “legal”. That might make it legally reasonable for the telco to assist and comply, and be a defense to any ultimate liability, but it could very well still be an illegal act by the administration.
Right–thanks. Not illega lfor the telecoms, very illegal for Gonzales. Hell, if he represented that the AG had designated him and it was not true, wouldn’t that in itself be illegal? Aside from the illegal wiretaps?
Absolutely illegal, absolutely unethical and a disbarrable offence by Gonzales if he did so.
And as you have stated many times in the past, the telcos have very good lawyers, and know that any “certification” by Gonzales as WH counsel was only a legal opinion on his part, without any exculpatory effect – the telco lawyers would have asked to see something that confirmed his authority to stand in place for the AG – and no doubt kept a copy of it. Forgery? Something that directly implicates W or Cheney in the authorization? There has to be something in the telco files, they wouldn’t just take Gonzales word for it.
And Earl too. No, the telco lawyers are not that stupid; the question is what was the corollary piece in the AG before he is AG workaround? Some kind of pixie dusted designation signed by Bush himself? I dunno…..
Good point. Addington’s a thorough chap. If they went the pixie dust route, it’s probably plan C, after the fact and after the bullying of DOJ didn’t work and during the retroactive immunity dance with Congress. All of which points to the massively illegal character of whatever is they’ve done.
This is about the administration’s culpability and how big a pile of manure they’ve landed themselves in. Which reminds me of that scene in Back to the Future where Biff….
The ueber-lawyers at the top telcos would not have accepted Gonzales-as-White House counsel’s bald statement that he’d been delegated authority by the AG. They could not have reasonably relied on his oral statement, not given the full and expert staffing at the DOJ. Not given so controversial a matter. Plus, we have written evidence that Comey in fact assumed authority as acting AG, which would have been routine procedure.
As a business matter, the telcos could have accepted the White House’s political promise that it would protect them. But that wouldn’t protect them in court, just as a presidential pardon wouldn’t protect them in civil court. Hence, the minuet being played out now over immunity in the legislative branch.
Had Gonzales made a false statement that he’d been delegated authority by Ashcroft AFTER his tete a tete in the DC hospital with Ashcroft and Comey, he’d be in a heap of trouble. Hence, I suspect the immunity language in the coming legislation will be broad enough to cover Gonzales having done that. Which saves having to pardon him for that particular peccadillo. There are undoubtedly many others, so my guess is we’ll see a Gonzales pardon among the others.
Markus q – the provision that you cite only authorizes emergency interceptions by designated persons for up to 48 hours in the absence of an application for a court order. It does not cover what took place here, which relates to the periodic statements by the AG to the telcos that the program as whole was authorized by the AG.
Even if the cited section applied here, about which I make no comment, the excerpt you quote limits the universe of those to whom the AG or the Deputy or Associate AG (ie, DOJ’s top three officers) can delegate authority.
At the federal level, those designees must be “any investigative or law enforcement officer”. That would not include the president’s personal attorney.
You’re missing that it must be an investigative or law enforcement officer,which the White House counsel is not>.
Marcy, there was something else that you wrote about last year, as I recall, that employed the same words, “…or his designee.” (I hope my mind is not failing me on this, otherwise I will be supremely embarrassed!)It would be real interesting to find out what that was. What is striking me about this is that we have a bunch of duly appointed officials who are either abdicating their responsibilities to lesser persons, or they are being appointed to their offices with the understanding that they will designate a specific other person to act in their place (probably on specific issues). Does that make sense? Could that person be in the VP’s office?
Great job EW.
The links to the Wired articles posted in the previous post dovetail great with this. The Wired article that originally posted the pdf’s of the teleco letters is here:
http://blog.wired.com/27bstrok…..eviouspost
It is a very good read in combination with this post.
Recommend all the links at the bottom of the Wired article as well.
Getting logged in took some time, and at least one comment has touched on this. You stated,”…2518(7) doesn’t say anything about designees either”. Your link to that statute at the Cornell Law school web site indicates that any investigative or law inforcement officer, specially designated by the AG,DAG,AAG,(and so on)may authorize the cooperation of the carriers, but under clearly stipulated circumstances. First, IIRC some time ago someone here indicated that the president’s councel is not one of those authorized to designate, but could be a designee. Second, this statute, 2518(7), makes it clear that the scope of this designation applies to an emergency situation which has a finite application, such as untill the sought information is obtained, and untill a court order authorizing the cooperation is obtained. In fact application for such an order is to be made within 48 hours. Further language deals with how the collected info is to be treated if the court order is denied.
Now this brings up a couple of interesting issues. This section, (7), assumes a wiretapping operation which has some concieveable end to it. But if the operation is of a datamining nature, it could go on indefinately. Further this section assumes that an application will be made for a court order within 48 hours, which will be either granted or denied. If no application is made, it can’t be denied, thus there is no natural legal end to the “authorized cooperation”. It would seem to me(IANAL)that any operation based on 2518(7)that is intended to be ongoing without a court order is on very flimsy legal grounds.
OT, but our friend Reggie is playing hardnuts.
Could the government have imposed fines on Judy, Judy, or does this
apply only to civil cases?
http://www.nytimes.com/aponlin…..orter.html
Thom Hartmann floated the idea the other day that the telecoms’ attorneys wouldn’t agree to help the government with illegal activity without getting something in writing to cover their own butts. And so, Hartmann concludes that the immunity deal really is for the Bush administration only.
Is this plausible?
– Tom
Okay, several were asking my thoughts on the three respective letters from the carriers to Dingell et al. I have to go out for a couple of hours with a client, but briefly, I would say the letters pretty much support what we have all been saying for some time now, i.e. that the telcos are not overly concerned about losing the farm to liability judgments on the merits, they think they are already protected and that the liability rests with the government. I have absolutely maintained this from the get go. And I suspect they actually have far better documentation in their hot little hands to back this up than they are even letting on.
That said, the Verizon letter was specific in saying no indemnification. That, on the surface, is contrary to my little theory. However, a closer reading makes me wonder if it is a strike against it or not. First off, I want honest thoughts from all of you on this. I am not married to my indemnification theory irrevocably; it was just something that made perfect sense to me and nobody that I had seen had come up with anything better explaining a lot of otherwise inconsistent things. The underlying argument I have frankly does not depend entirely on indemnification itself, just on the guile and moxie of the telco lawyers to adequately protect themselves to a degree to where there is no way that the Bush meme of “the telcos could lose everything and never help us again” is complete bullshit.
That having been said, back to the letters. AT&T sure goes out of their way to avoid responding to the indemnification questions. Qwest goes out of it’s way to avoid all the questions (which, by the way, is the way I would have responded “Sorry, can’t talk about all that, ask Bush. Buh bye.”) Verizon says no indemnity. Except they don’t. They, if you really read it, say no indemnity for the standard information type requests (for which they wouldn’t need it anyway); but there is no discussion in this regard to open ended tapping, data dragnetting and ming etc. Indeed where Dingell asks more specific questions in that regard, they get even more slippery. Couple that with the fact that, if there are indemnification agreements, they are most certainly classified, that leaves the question still pretty open I think. This is the closest to “Nope bmaz you are wrong” that I have seen though and does give me pause on the indemnification part of my argument. What say you all?
I think I have some more questions for Comey…
And I am reminded again by this post from Slate (6/8/07):
(my bold).
http://www.slate.com/id/2167985/
Here we are again today…pointing to the same pattern…
how on earth do they have the nerve to rewrite law?
do they think it will pass un noticed?
If they don’t rewrite it, or get amnesty for it, they go to jail if anybody finds out what they did. It’s not about the money, for once.
And my hat tips to klynn for her comment in the previous thread that mentioned this from the EFF:
Noting the names, I went looking for the letter they quoted and stumbled on all those nice Comm-co response letters.
I didn’t realize how much involvement is spread around numerous committees in Congress wrt this subject.
Yup, thanks to you both. Dingell’s actually my Rep and I do stay in fairly close touch with his folks, but I had no idea these letters were there.
Incidentally, I DID ask whether they’ve been talking to the email providers–I hope to have an answer Monday.
Yes!!!
I’d like to think Dingell and Company would write letters to them also and get back some more weasely responses.
I gotta admit it is fun to pick apart their devious wordsmithing, particularly given the talents of the inhabitants of this place.
Oh, yeah.
The end of football season, I can live with… but God forbid the minds here ever stop analyzing texts and timelines!
THAT would be painful ;-))
Hey MadDog all h/t’s to you. As you know, linking on my end is less than reliable…So, thanks to you, the links made there way on to the post. Many thanks.
I’ve just been “pulled” to the investigative reporting on Wired ever since the cable cuts and began to follow their telecom legislative posts as well. With EW’s insight and digging along with Wired’s and then add in that your (MD) work and knowledge with bmaz and the whole team of LB’s here — as well as the great questions and technical knowledge here, I am more driven to find answers to this mess as a citizen…Democracy in action so to speak.
Thanks to all. Each little piece of the puzzle gives us a view of the big picture at play here. We’ll get it, and I think soon…
Thanks EW for your endless efforts. One of your great strengths is your ability to ask questions with your readers. Additionally, you answer our questions too. The give-and-take, creative problem solving is a humble and purpose-filled journalistic event.
What a gift…
Well the 15+ inches of snow have been conquered by the Klynn crew. Hot cocoa is now a much needed treat…
15 inches of snow!?!? Yikes, it’s football season! I miss Brett Favre already….
My son feels your pain bmaz. He’s a Packers fan big time. Lot’s of cheese eating to ease the pain. (See, a redeeming Buckeye!)
The endless scooping of snow has been helpful too!
You’ve got to snap out of it bmaz, it’s March…think basketball…
MD, thanks for those links to the Committee letters. Like phred, I found them mighty interesting.
bmaz – what if the telcomsats don’t need ‘indemnity’ because — as they say over and over, the Exec Branch won’t let them even discuss what they’ve already done? The Exec is controlling this whole mess, and all the telcomsats have to tell Congress or the Courts is: (1) the Exec made us do it, and (2) the Exec said we couldn’t talk about what they made us do. The liability then goes to the Exec, and indemnity is no longer an issue, correct?
But as other commenters pointed out on the previous thread, the convergence created by digital technologies now makes it easier for one tap to bring up: your meds (ordered at a pharmacy, which links its database to health care providers), you online banking (via browser tracking), your email, your phone calls, your web browsing habits — it’s easier to find out ALL about you now, with a single tap.
Finally, what are the odds that ‘designee‘ could turn out to be (at least, in some cases) private contractors like Blackwater? Because if you ‘designate’ someone to take over for you, there’s nothing in the law that requires they be an employee of DoJ, nor the WH, nor Congress.
Hmmmmm…?
This is an excellent point; it is also where the quality and tenacity of telco lawyers that I have constantly described comes in. Such a reliance as you ponder would only protect the telcos as far as the uniformity of interest with the Bush Administration takes them. I personally cannot see this being good enough for the telcos, because what happens if/when the Bushies want to point the finger somewhere else and magically decide to drop the state secrets assertion and attempt to shift blame? Now, for a lot of reasons, the Bushies have too much at stake for me to see them doing this, but if pressed, I could come up with scenarios where they would. That would be too much exposure for the telco attorneys; they want the power in their hands, not someone else’s. If they don’t have indemnification agreements, they have something the functional equivalent thereto or, quite simply, they don’t play ball. That is just how they work.
I should also add that, while running around this afternoon, I pondered the Verizon statements regarding immunity. Now I am not saying I am totally convinced that i am right about indemnification itself (I am 100% convinced that I am right that the telcos don’t need immunity in the least and that is all about covering the Administration’s ass and convenience, not about saving the poor telcos), but the more I think about it, there is a lot of room for careful parsing in the Verizon responses on indemnification and I am not sure they really tell us anything. They might; but they might well not.
Okay, thanks for further elaboration.
Frankly, to see all 3 of those telco letters basically tell the House Committee, “Sorry, we can’t tell you any juicy details because the (Unitary) Exec says we can’t” was …
depressinginformative.If Congress rolls over for this sh*t, then maybe it’s time start a fundraiser to deliver doggie leashes to every member of the House and Senate. Because if all they’re going to do on FISA is sit up, roll over, and bark on command, they need the right accessories.
(Don’t know whether you recall when FDL organized delivery of ‘Rubber Stamps’ to every Congresscritter, back in 2005 or 2006. It was an early salvo of the Netroots on Capital Hill, followed by deliveries of ‘Crashing the Gates‘. But in view of Congressional ‘rolling over on FISA’, I think doggie leashes might be just the perfect gift to present each member of our gutless, feckless ‘
SecondDead Branch’ of government.)Okay, I’ll be nicer.
Along with the leashes, the Netroots could include some doggie biscuits for every member of Congress. As an added bonus, the Netroots might want to also drop off a nice box of doggie biscuits for each telecom lobbyist.
And I’d be willing to put a little extra in the pot to pay for some extra-special rhinestones on the doggie leashes for Hoyer, Rahm Emmanual, Jello Jay, and three other top sit-up-and-beg Dems. (I was loving Hoyer when he looked like he was standing up against Bu$hCo, but where is he now?)
D’ya think doggies leashes and biscuits could help send the message to knock off being ‘obedient’ and stop enabling Bu$hCo criminality?
Or am I just nuts…?
Helarious.
Loved the rubber stamps.
Maybe a few jars of vaseoline would be more appropriated, you think?
I’ve been down this road before, but I disagree with some of the underlying assumptions of this post and the AT&T letter, i.e., that OTHER THAN the lapse period, the “letters” from the President qualified as certifications under the safe harbor provisions of 2511(a)(2)(ii). Although he has been a disaster on the Judiciary Committee, Spectre was obviously not all that bad a lawyer, and his questioning of Comey was far more to the point, procedurally and statutorily, than the Dems who questioned Comey that day (and who were more concerned with expressing awe than getting at facts for that matter).
Specter locked in the fact that the letters going out were not going out under any statutory provision or authorization. Comey would have been all too aware of the safe harbor provisions and he knew the import of his answer, as did Specter, which is why Specter went back and locked that answer down. So AT&T’s not under oath letter directly contravenes the under oath testimony of the ex-Deputy AG. Gee, think that might need to be cleared up? Because it’s pretty clear – although it wasn’t locked down in the same way – that Comey was also saying that the post-clean up program also was not getting safe harbor qualifying letters.
It would be interesting to see a time line with the SWIFT program timeline. At a certain point, the recipients of the SWIFT program administrative warrants demanded the “outside” auditing, which Intel Czar McConnell’s old firm provided. I’m wondering if the President’s letters to the telecoms set up a non-statutorily authorize administrative basket warrant process with lots of hand offs to “designees” and if part of the reworking to put better audits and firewalls on the TSP involved using McConnell’s firm for the domestic spying program too? That would make for an “interesting” situation.
In any event, the way the safe harbor provision (2511a2ii) works within FISA and 2518(7) appears to be like this (and this is just my take, ymmv) – there are basically two sets of instances where wiretapping can be done without a warrant. First, there is the “emergency” type of wiretaps, done without an order initially, but where an order is contemplated (either under regular criminal law or FISA) because, fore example, the communications involve non-agents of foreign powers and/or Americans on American soil or the like.
Second, there is the foreign power to foreign power situation of 1802(a)(1)(A)(i), “ … the electronic surveillance is solely directed at (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers…” In this situation, the not only is the AG not required to get an order or warrant, but arguably the FISC has no jurisdiction to grant an order. Also in this situation, though, there is supposed to be “no substantial likelihood” that the interceptions will acquire communications of a US person and the AG is supposed to employ minimization procedures that meet the FISA definitions of minimization procedures.
This type of “no order/warrant – AG certification only” interception is to be conducted only in accordance with an AG certification (no designees – although the FISA definition of AG allows a couple of other people to act as well) and the AG was required to make reports about this kind of no-order/warrant surveillance to the House and Senate Intelligence committees on a semi-annual basis.
So basically what the safe harbor provision and 2518(7) do, working together and with the other provisions, is to say that in the EMERGENCY order situation (2518(7(a) sets forth the requirement of an emergency situation existing), then designees or state officers as well may get immediate wiretap access, pending order/warrant application. But 2518(7) doesn’t allow for any “designee” status where there is no order application in the offing. Not only that, but 2518(7) requires that,
With respect to “teh program” there were no orders in the offing and there was no compliance with the requirements on inventories where those orders were not subsequently issued so there is no application of 2518(7). There was also no AG (or FISA allowed substitute) involvement during the lapse period to meet the FISA no warrant requirements for solely foreign power to foreign power communications, but there also does not seem to have ever been a soley “foreign power to foreign power” program at issue for which a certification could issue and the under oath testimony of the Deputy AG is that there was no certification given that qualified as the AG certification contemplated by the 2511 safe harbor provisions. In addition, there were never any reports made to the full Senate and House Committees, as required by statute, until – well, maybe never, but certainly not until the last month or so when the House Committee finally received some info (although maybe not all info).
The telecoms are charged with an understanding of the safe harbor provisions and their application to pending orders with respect to domestic interceptions, as well as the need for specific AG certifications based there being no substantial likelihood of intercepting US person communications and statutory compliance and minimization procedures for no warrant/order situations involving domestic interceptions.
PS – a timeline overlay with the SWIFT program would be interesting. I wonder if the time the banks were balking at the “administrative warrants” (which may be what the President’s orders attempted to set up for ‘teh program’ – just without any statutory authority) and putting on McConnell’s firm to “audit” coincided with the revolt and “new program” for TSP. If so, wouldn’t it be interesting if part of the “firewalls” and protections from the Comey/Goldsmith crew involved using auditing from McConnell’s firm in the same capacity as they audited SWIFT? So that McConnell would have a whole lot of vested interest in the immunity sales pitch he is making …
Mary – If you wander back to this mostly dead thread; I agree. And that is pretty much my basis for saying that the Verizon denial of indemnification really isn’t a denial of indemnification at all. n If you really look at what they said, they say they didn’t get any indemnification on any of the traditional information request cases under the statutes. Fine. Okay. But what about the crap that was NOT pursuant to the specific statutes? That is the question; and that they do not address. Nor does AT&T; as you point out. When reading these damn letters, people should keep in mind who wrote them, and that would be the top notch lawyers I keep talking about. The Qwest letter was the most honest simply because it just stated that there is a whole bunch of stuff and they can’t talk about it. AT&T and Verizon seriously try to make you think they are answering by talking about all the legal kind of things, pursuant to the statutes, that always have gone on. It is a dog and pony show to divert your attention from the fact they are not answering shit about the real questions. The letters are pretty interesting to compare, but really don’t tell us diddly squat that is helpful or new.
Mary and Bmaz…
Thank you for putting into words specifics that would bring clarity to the issues at hand, especially the dialogue about the AT&T letter and the Verizon letter along with the suggestion of a timeline overlay of SWIFT and the role of McConnell’s firm.
Thank you both.