Did Nacchio Lie, or Just Misunderstand?

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The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask. Read more →

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Someone Doesn’t Want the Telecoms to Get Immunity

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Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital. 

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Not Three Branches, Not Two Branches, Just One Branch of Government

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Apparently, in addition to sending out a chain letter stating "butt out" to five or six members of Congress yesterday, DOJ also sent a letter to Judge Henry Kennedy, telling him not to get involved in the torture tape question (h/t Scarecrow).

The Bush administration told a federal judge it was not obligated to preserve videotapes of CIA interrogations of suspected terrorists and urged the court not to look into the tapes’ destruction.

In court documents filed Friday night, government lawyers told U.S. District Judge Henry H. Kennedy that demanding information about the tapes would interfere with current investigations by Congress and the Justice Department.

Now, BushCo is apparently claiming–to Kennedy, at least–that the CIA was free to destroy the torture tapes since the tapes didn’t come from Gitmo.

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos. The recordings involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Government lawyers told Kennedy the tapes were not covered by his court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Of course, such sophistry won’t work for Leonie Brinkema–whose questions about interrogation tapes would seem to have included the Abu Zubaydah tapes. Nor should they cover the FOIA court battle in Alvin Hellerstein’s court, which pertain to all detainees held abroad. Read more →

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Oversight or Politics?

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Michael Mukasey has engaged in a remarkable bit of sophistry with his refusal to clue Congress in on the joint DOJ/CIA IG investigation into the destruction of the torture tapes. He explains his decision as an attempt to avoid "any perception that our law enforcement decisions are subject to political influence."

As to your remaining questions, the Department has a long-standing policy of declining to provide non-public information about pending matters. This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee’s interests in this matter. At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice. Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied.

Of course, the "political influence" Mukasey was asked to address during his nomination hearings was the kind exerted when a Senator or a Congresswoman called the Attorney General privately to demand that a USA either accelerate the prosecution of a political figure or be fired. In this matter, Mukasey has been asked to respond to what is an almost unparalleled degree of bipartisan support for an open inquiry into a matter that just stinks, already, of a cover-up. Leahy and Specter (and Reyes and Hoekstra and Durbin and Biden and more) called for a procedure that had oversight built in.

And Mukasey said no. Read more →

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When All EOs Are Pixie Dust, It Means Dick Can Declassify Anything He Wants

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Brit Hume once asked Dick Cheney whether he had declassified "information" in response to Joe Wilson’s op-ed. Cheney claimed he had the ability under an Executive Order to declassify such "information."

HUME: On another subject, court filings have indicated that Scooter Libby has suggested that his superiors — unidentified — authorized the release of some classified information. What do you know about that?

CHENEY: There’s nothing I can talk about, Brit. It’s an issue that’s been under investigation for a couple of years. I’ve cooperated fully, including being interviews done by a special prosecutor. All of it’s now going to trial. Scooter is entitled to the presumption of innocence. He is a great guy. I worked with him for a long time. I have tremendous regard for him. I may well be called as a witness at some point in the case and it is therefore inappropriate for me to comment on any facet of the case.

HUME: Let me ask you another question. Is it your view that a vice president has the authority to declassify information?

CHENEY: There is an executive order to that effect.

HUME: There is.

CHENEY: Yeah.

HUME: Have you done it?

CHENEY: Well, I have certainly advocated declassification. I have participated in declassification decisions.

HUME: Have you —

(CROSSTALK)

CHENEY: I don’t want to get into that. There’s an executive order that specifies who has classification authority, and obviously it focuses first and foremost on the president, but also includes the vice president.

But the EO in question–EO 12958 as modified by EO 13292–says no such thing. The modified EO gives the Vice President to classify information. Read more →

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All Your Data Belong to George

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There’s a striking passage in one of the documents released in yesterday’s document dump.

Would NSA object to a legislative codification of E.O. 12333 minimization?

Yes because it can be difficult to change a statute if the procedures need to be changed in order to meet operational needs.

The passage refers to minimization, the process by which intelligence agencies protect the privacy of Americans whose communications are collected incidentally to their wiretapping activities. I find the passage striking, first of all, because it (indeed, the whole document) emphasizes the basis for minimization requirements in EO 12333, and not FISA. In response to a question about where minimization comes from, the document points to the EO.

Where does the need for minimization procedures come from?

The most direct answer is Executive Order 12333. Section 2.3 of that Order specifies that agencies in the Intelligence Community are authorized to collect, retain, or disseminate information concerning U.S. persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.

This basically repeats that passage of EO 12333, which says,

Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order.

And then goes on to describe the kind of information that can be collected.

But why refer to an Executive Order, when FISA imposes a statutory requirement on minimization? And FISA’s minimization requirements provide more detail about what can and cannot happen with US person data. Read more →

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Nacchio’s Hearing–before the Judges Who Gave Him Bail–Set for Next Week

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I said yesterday that the lawsuits against the telecoms were the only means left for us to find out how the government spied on Americans. I forgot about Joseph Nacchio, whose appeal will be heard by the same folks who decided his appeal addressed a "substantial issue."

The same three appellate judges who ruled that Joe Nacchio could remain free pending an appeal of his conviction of insider trading will hear his case next week, the 10th Circuit Court of Appeals announced Monday.

That could favor the former Qwest CEO because the judges already decided when they granted Nacchio’s request to stay out of prison that there was "a substantial question of law or fact" that could lead to a reversal of his April conviction.

"Nacchio has to be very happy," said Jay Brown, a University of Denver law professor who has followed the case.

The judges already have drawn some conclusions about the case and are sympathetic to Nacchio, Brown added.

But Marcy Glenn, head of the appellate practice group for the Holland & Hart law firm, didn’t think one should read too much into the fact that the panel is the same.

"The earlier decision was an interim decision, and it was made before there were any briefings on the merits of the case," Glenn said. "I would expect (the three-judge panel) to be absolutely open to all arguments at this point."

Oral arguments are scheduled for 2 p.m., Dec. 18. The case is being heard on an expedited basis, though no deadline for a decision has been set and the panel may issue its ruling at any time.

Jeralyn Merritt live-blogged a good deal of Nacchio’s trial, so hopefully she’ll give us her expert opinion on this appeal.

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Phone Slip

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MadDog points out that the documents released through FOIA to EFF are available. These are documents, remember, relating to communications about the FISA amendment between DNI McConnell and Congress or representatives of telecom companies.

Declaration of what’s included

Document dump one

Document dump two

I’m reading through things now. But one thing is immediately apparent. There is almost no trace of any conversations between telecom companies and ODNI employees–there’s just one phone slip.

ODNI located one document that is potentially responsive to request number one. This document is a telephone message slip that contains the handwritten personal notes and mental impressions of an ODNI employee. This document is being withheld because it is not an agency record under FOIA. In addition, the documents qualifies to be withheld pursuant to FOIA exemptions 1,3,5 and 6.

Boy, those phone companies, they’re pretty careful, huh? Read more →

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Did the D.O. Lawyer Even Know about Brinkema’s Request?

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While it has clear Isikovian blind spots–like the rather obvious coincidence between the terror tapes timeline and the events in Leonie Brinkema’s courtroom–there are some interesting tidbits in this Isikoff-Hosenball article on the "paper trail" of the decision to destroy the torture tapes. Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence. Read more →

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We’re Not Getting the FISA Opinions … Which Leaves Just the Lawsuits

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The FISA Court announced today that it will not release its opinions to the public.

The nation’s spy court said Tuesday that it will not release its documents regarding the Bush administration’s warrantless wiretapping program.

The Foreign Intelligence Surveillance Court, in a rare on-the-record opinion, said the public has no right right to view the documents because they deal with the clandestine workings of national security agencies.

So um, yo, Senate? If you give the telecoms immunity, we’ll never know how they spied on us.

I’m struck by how similar this opinion–written by John Bates–is to the opinion he wrote in the Wilson lawsuit. He acknowledged that there’s merit to the request, as he suggested that Valerie’s outing was troubling.

Bates acknowledged that the public would benefit from seeing the documents. The decision-making process would be understood, he said, and public oversight could help safeguard against government abuse.

And then, as he did with the Wilson opinion, he said, "um, no."

But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.

Public opinions from the court are so rare, it’s not immediately clear what the ACLU’s options are. Because Bates alone signed the ruling, the group might be able ask for a review by the full panel. Or, it might be able to challenge the ruling before a federal appeals court.

Update: Here’s a copy of the opinion. 

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