Hey Senators! What About Immunity for Former Qwest Officials

by emptywheel

As I pointed out in this post, the Senate Intelligence Committee used a remarkable argument to justify giving the telecoms immunity in their FISA bill. Basically, it argued the telecoms could neither prove or disprove whether they were entitled to immunity according to existing statutes, because the mean old Bush Administration had invoked State Secrets. And therefore, the invocation of State Secrets put them in an unfair position as they tried to defend themselves against lawsuits.

To the extent that any existing immunity provisions are applicable, however, providers have not been able to benefit from the provisions in the civil cases that are currently pending. Because the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section 2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch.

[snip]

Providers who did not assist the Government are similarly unable to extract themselves from ongoing litigation, because the assertion of the state secrets privilege makes it impossible for them to demonstrate their lack of involvement.

So the logic, in general, is that it is unfair for a defendant in a civil suit to be prevented from defending itself because the government has invoked State Secrets and thereby prevented the defendant from introducing the evidence that would prove its innocence or its immunity.

Of course, the Senate Intelligence Committee is only making that argument in the context of its desire to convince telecoms to cooperate with the government, regardless of the laws that are supposed to guide that cooperation. I'd bet you that, if a defendant were unable to defend itself from lawsuits because the government invoked State Secrets, and if that defendant had not cooperated with the government in illegal wiretapping, no one would bat an eye at the injustice.

Well, we're going to get to see just that in the civil suit against Joseph Nacchio and other former Qwest officials. Because there, the government is invoking State Secrets in a case against individuals who refused to cooperate because--at least Nacchio claims--they believed cooperation would have been against the law.

The country's top intelligence officer has joined the fray in a civil fraud case against former Qwest chief executive Joe Nacchio and four other former company officials.

Director of National Intelligence Michael McConnell invoked the state-secrets privilege in a 12-page declaration filed Monday, arguing that disclosure of certain information Nacchio and others are seeking as part of their defense could "cause damage to the foreign relations and the national defense of the United States."

The state-secrets privilege "acts as an absolute bar to disclosure of material that would harm national security - regardless of a party's need for the information," Justice Department attorneys wrote in a filing that accompanied McConnell's declaration.

McConnell wants to bar Nacchio and others from soliciting and disclosing information about "any classified or potential contracts involving any U.S. intelligence agency and Qwest."

I'm waiting for the Senate Intelligence Committee to get riled by the injustice of this any second.

[Crickets]

Comments

[Kagro X]

It's almost enough to make one suspect that Nacchio's legal woes are retribution for his lack of cooperation.

But that would assume massive politicization of the Department of Justice, which Very Serious People tell us did not happen, or isn't a big deal even if it does.

Please return to your blogs. Nothing to see here.

[radiofreewill]

Everything for the next 14 months, and I mean everything, is about Covering Bush's Ass - no matter who else gets hurt.

The Power-Mad Hateful Demi-God nearly succeeded in destroying our Country, from the inside, with a Secret Plan to Subvert the Government by Invoking Absolute Power on a Pretext of Ideological Survival against an 'Enemy' living in Mud Huts.

And, now, Our Congress is trying to sweep its Weakness under the rug and Keep the Clean-up Secret - no matter who else gets hurt.

Bush pocketed Congress' balls on 9/12, and if they want them back, they'll have to dance just like he says until Bush walks out the door on 1/20/09 with No Liability for Fucking-Up America and the World.

Bush has no prinicples, except Absolute, Uncontestable Power - and Our Congress can only say, "Yes, my Lord!" - in secret - while Crying Like Pathetic Weaklings in Public.

[Jay]

My understanding of the situation is that Congress's willingness to compromise is due not to the Blue Dogs per se, but the possibility that the Administration has pulled a giant J. Edgar Hoover and has the leadership and several top Democrats dead-to-rights in various picayune campaign finance or sex-scandal implications. That's also why they're able to get so many GOPers to vote against SCHIP and their own best interests; doubtless they knew all about the dirty doings of their various caucus members, and used that against them as leverage. I think that's what's in the Veep's famous walk-in vaults.

The Dems can't jump the shark and impeach Bush or Cheney because in whipping the Blue Dogs it's bound to get out what they're going to do. The administration can't unleash the DOJ on the Dems because of the politicization scandal. They're in a precarious embrace and have only little skirmishes here and there, with recess appointments and funding pissing contests, rather than an all-out war where everybody would lose.

The really intriguing thing to me is the spate of resignations, Card-Gonzales-Rove, and others, that simply must have something to do with all this. Is an IG somewhere too close to the truth?

[Mary]

Not just Qwest/Nacchio - think all the GITMO cases.

Here's the nuts and bolts on that though.

When last I looked, the telecoms themselves had not filed one objection to the invocation of state secrets by gov. So obviously, they aren't clamoring for the courts to strip away that privilege layer.

Secondly, no one can determine if the privilege has been invoked in violation of the existing Executive Order - much less the existing case law - unless and until a court reviews the activity to see if it s illegal. That's the one question I haven't heard mentioned from the bench and a position I haven't heard pushed hard enough from the plaintiffs.

Does Gov agree that the Executive Branch cannot violate the law and/or Constitution and evade judicial review of their illegal activities by invoking state secrets?

No one is pushing that to the point it needs imo and I'm not quite sure why.

[Kagro X]

No one is pushing it because the answer is so frightening.

[EH]

I'm under the impression that the US has not actually passed a state's secrets law like what the UK has, and instead is somewhat of a tradition. But causing damage to "foreign relations" is a valid reason to invoke it? Can this be anything more than a "making Bush look bad damages national security" kind of logic?

[Mary]

Thanks K - that is, I guess, the best answer to the unasked. *g*

[Kagro X]

Well, seriously. People approach the question every so often when the Senate is grilling an Attorney General or an Attorney General nominee. They get answers that are pretty blunt, and then they pretend they didn't mean what they meant.

Senator Feingold asked Alberto Gonzales basically whether these idiotic constitutional theories meant the president could ignore the law, and Gonzales told him he was asking a hypothetical question. Feingold was asking in particular about electronic eavesdropping, and chose to take the answer to mean we weren't doing any electronic eavesdropping of the kind he was asking about, even though he asked the question precisely because people were beginning to realize that we were doing exactly that.

Gonzales, of course, meant that the question was hypothetical because he was being asked if the president could break the law, and it is his belief that that is definitionally impossible.

Feingold chose not to hear that. Probably because hearing it meant standing alone, again, waiting for other Senators to acknowledge hearing it. Which they won't.

Mukasey gave the same answer to pretty much the same question. And who heard that? Nobody. And now he's the Attorney General.

Asking these questions gets embarrassing after a while.

[emptywheel]

EH

Thanks for pointing that out; I was struck by that too. It rather lowers the bar a bit, doesn't it, that now it doesn't even have to be secret, just damaging to our foreign relations. I suspect they don't want much of the info Nacchio has already revealed out bc (they claim) they don't want Europe to realize we've got wide networks of fiber that they pretend not to know about on their land.

[Mary]

I know some in Congress have done the Tongue Tied Tango, but I'm looking for it more particularly in the pleading and arguments to the court.

Seldom is the Executive Order even mentioned, but I think that it clearly purports to do the Judiciary's job - interpret what is or is not illegal - in connection with classification.

So I think that it devolves into a very simple fire, but one where no one is dragging DOJ's feet. First and foremost they need to be on the record, in representations to the tribunal, that illegal activities cannot be classified. Then they need to be on the record in answering how it is determined, once there is a good faith basis for challenging the legality of a gov program, the issue of legality is resolved. Who interprets the law in an adversarial setting? One of the "sides" to the dispute - - or the court.

And the bright shiney's clouding the issue of whether or not gov used a technoligical approach that it does not want to disclose, as a "state secret", when it violated the law and the Constitution - is something that can be addressed pretty easily IMO. It's like saying that Cheney shot someone in the face using a top secret laser gun instead of a shotgun. You can redact and seal the technical information about the nature of the gun without having to pretend the shooting didn't take place. A court might have to hear sealed testimony that would stay sealed on the capacities and technology of the weapon to get at issues of, for example, Cheney's intent (maybe the laser gun makes people's head look like a big caged quail, for example)

Still, that's all bright shineys and completely removed from - - details of the technology used to accomplish the actions aside, where the actions illegal.

How often does anyone explain the exact details of manufacturing and physic re: how a gun works and does a jury need to understand that to find someone guilty?

FWIW - I've got to head out the door but, OT a bit, here's an op ed that goes to the "secret" OLC opinions.

http://www.nytimes.com/2007/11/20/opinion/20katzenbach.html?_r=2&th&emc=th&oref=slogin&oref=slogin

Based on what little I know, opinions of counsel had to be made public and with privilege removed in order for anyone to be able to even try to claim reliance on those opinions as a part of a good faith defense. That's if good faith can even be a defense in the facts and circumstances.

[Kagro X]

They probably also don't want anyone to be forced to ask whether or not we're mining data from traffic in and out of foreign embassies and consulates.

[Neil]

This is and intersting discussion about president-at-war and the law, and his application of the state secrets privilege on criminal and civil litigation.

First they'll act and then you learn about it. And then they'll act again.

[bmaz]

"They probably also don't want anyone to be forced to ask whether or not we're mining data from traffic in and out of foreign embassies and consulates."

And this is very sage thinking from the Bush Administration, because, as long as this is kept secret, no one could ever guess that we would doing electronic surveillance of diplomatic stations and embassies. Nor would any other country have reason to know about all the fiber optic systems we have laid.

Mary is right. When are the courts going to wake up and start evaluating and recognizing that the Government's assertions of states secrets/national security are routinely in complete bad faith.

[lostoption]

Rather than "state secrets" preventing telecoms from defending themselves, why does the doctrine not act as a bar to an individual proving a claim that he was surveilled illegally? Why does it not effectively provide a defense to the telecoms, rather than acting as an obstacle to their defending themselves? How does a plaintiff prove that he has been wronged if the evidence that would show that cannot be revealed, due to a claim that it is a "state secret?

[Ishmael]

When I think about the concept of immunity for lawbreakers who also make large campaign contributions, I remember that the Reformation under Martin Luther really got going when he campaigned against the "indulgence peddlers" - remissions from sin in exchange for contributions to the Church. In the early 1500s, this seemed to get people riled up against the establishment, and along with this nifty new Printing Press, made it possible to communicate about it to everyone who would care to listen. Bushco is all about using its infallible Unitary Executive power to sell "indulgences", whether it is retroactive immunity, pardons to co-conspirators, commutations of sentences, signing statements that the law does not apply, legal "opinions" that justify whatever the President and his minions want to do, the list goes on. Well, now we have the equivalent paradigm-changing technology to the printing press in the Internet, and lots of people to "Protest" about things - I guess I can't understand where the outrage is about this kind of absolution in exchange for money - as others have said, its not like the telcos are very popular with people, even Bushco can't say with a straight face "Support the Telcos!" like they invoke the "support the troops" mantra - but then again, the telcos have Jay Rockefeller to paint them as patriotic terra-warriors.

[Mary]

Not just embassies and consulates - what Congress is doing is removing the original national security overlay that foreign surveillance involves a foreign power or agent of a foreign power from the equation entirely and is saying that all foreigner can be surveilled, period. And any US persons who might be using a foreign hotel's phones, etc. can also be surveilled with no national security reason, as long as there can be some claim - a claim not subject to consequences or oversight or retributive outcomes - that someone thought the call might have been from a foreigner.

So anyone worldwide using a system that allows a US company access can have the US snarf up their personal communications for whatever reason and with no oversight. Bc after all - isn't that what the founders intended? To have one part of the US government, with no effective rules, consequences or oversight, become panty sniffer and blackmailer to the world?

Ugh.

lostoption - actually what you question is a part of it too.

Rather than "state secrets" preventing telecoms from defending themselves, why does the doctrine not act as a bar to an individual proving a claim that he was surveilled illegally? Why does it not effectively provide a defense to the telecoms, rather than acting as an obstacle to their defending themselves? How does a plaintiff prove that he has been wronged if the evidence that would show that cannot be revealed, due to a claim that it is a "state secret?

What you are mentioning comes in at the FOIA denials level and would have been the case for al-Harimain as well if there had not been the evidentiary "tell" in the document production. There's actually no way of knowing how many people have had illegal surveillance utilized against them in cases now over with or those still in GJs and not at the indictment stage yet.

So one element of state secrets invocation is that Gov refuses to respond to FOIA requests, or lies, with respect to its illegal surveillance of American citizens, so they cannot proceed. That is the "standing" issue that is referred to from time to time.

If you can't get access to the secret files on government crime, then you can't make your case.

That was why the 6th circuit case used a first amendment approach, claiming that whether or not gov turned over information on who, specifically, was being illegally spied upon by a perverse government, operating against its own citizens in favor of concentrating power in the hands of a few not nice and not good ment, - whether or not that info was turned over, there was still standing bc the existence of the program had a horrible chilling effect on first amendment exercises, especially of some of the named plaintiffs who routinely engaged in overseas communications.

This prevailed at the lower court and was shot down by the circuit court and is still a question mark.

Another approach, taken in the telecom cases, was to demand the information, not from gov but from the telecoms. So what has happened is that gov INTERVENED in that suit (it was not a party - the case was between plaintiffs and the telecoms) and gov said - the telecoms cannot reveal whose information they helped us surveill bc it is a state secret.

Uh, no, uh, wait, uh, what we gov lawyers meant was they can't say WHETHER they helped us surveill a "massive" (per McConnell) number of US citizens personal inforamtion, even though we - gov - have said it would be a massive number if they had to say what the number was - - anyway, they can't say what they did do bc it is a state secret - and they can't say they didn't do anything bc we can't talk about what has been done to then get at what wasn't done.

And interestingly, the telecoms who are supposedly being thwarted from defending themselves and proving that they didn't engage in illegal surveillance of, and compilation of massive amounts of personal US citizen information by the DOJ's intervention and assertion that no one can even discuss the program - - - oddly and interestingly, those telecoms whose hands are being tied by the scurrilous meanies at DOJ who won't let the telecoms defend themselves - - - oddly those telecoms haven't been objecting to the invocation of state secrets.

They haven't been leaping up to say to a COURT - in pleadings SIGNED and subject to court disciplinary action - we are innocent and if gov would just remove these cheesey leopardskin handcuffs and the matching itchy black feather thong, we could prove it.

I guess cat got their tongue. With all those feathers, they better worry about cat getting something else soon.

[sparrow]

It seems to me the State Secrets argument could be cited at its choosing with just about any unlawful or unconstitutional act by the administration in an attempt to throw a monkey wrench into the wheels of justice. I am confused. How does advocating adherence to the rule of law in this one area serve to protect them from being accountable to the rule of law when the activity over which State Secrets is invoked is in itself is illegal?

[cboldt]

My impression of the state secrets doctrine is that, if successfully invoked, it altogether bypasses the analysis of "legality" and "liability." State Secrets in this sense is an affirmative defense, standing on its own, and standing in secret.

Once the Court is convinced that the "secret" isn't purely bogus, and on occasion, without so much as a review of the evidence (Reynolds), the doctrine applies.

I think the press for Congressionally enacted amnesty for the TSP and other illegal spying activities is driven in part by the fact that some judges have ruled that the secret government snooping policy (as compared with the snooping law) must be evaluated publicly. IOW, the issue doesn't go away with "state secrets," because some judges won't play along.

The same may be true with statutory immunity as well. ACLU has made some comments to the effect that a statute can't strip a Constitutional right.

[bmaz]

"The Constitution is just a damn piece of paper..." Dear Leader's words.

[Alyx]

radiofreewill.....Hussah! You summed it up rather nicely. Can't wait for this awful party to be over!

[JohnLopresti]

A vantage of process developing the wiretap rights of government based on the current AUMF spans too brief a torrent of time for establishing reliability of discovery, or, as noted by numerous nearby observers, nondiscovery because of the amorphously developed state secrets firewalling. Viewed in the shortterm, this specific administration is notoriously opaque. Consider the following two current news items; one) DoJ's attempt to bend the Jefferson speech and debate defense in an appeal to apply it to, say Doolittle's defense; kind of a tanner version of graymail by the congressman; another) Brinkema's quandary reading the secret tapes news in parallel to her trying to decide whether there is a mistrial in VA for a defendant pedagogue, essentially an admission by the government that evidence sequestering was so overboard that administrators hid the evidence from their own prosecutor, in the name of state secret; and this was a mainland case.

Yet, glancing beyond the terms of the current presidency, salient in the extensive panorama, to me, would be the historically somewhat diminutive capabilitie to wiretap, or, similarly, to torture and otherwise transgress the Geneva conventions; that is, the government has several histories there which it has yet to tell, principally because the writings underpinning very ancient programs likely remain a secret as on the day president's signed them, or perhaps these are too voluminous and subtle to include in a president's purview, from several bureaucracies' perspectives.
Begin the current administration's history, and its asymmetrically arrayed foes, and concomitant expansion of those preexisting 'programs' of illicit foundations which only would have passed court scrutiny if in camera; i.e., topics like torture and wiretap being too inflammatory to discuss with the electorate, or tabloids, or the best and brightest in the corporate media institutions.
Add the social turmoil which washed over the world in several recensions over a few decades, and the bravery currently required simply to campaign for office in first world countries. Our system is one grown from freemarket cronyism, whose heroes and heroines are expected to arrive parthenogenically fully formed once having announced their candidacy for office; so the representatives we place there, when our voting machines actually work, are unlikely to yearn for earmarkless omnibus legislation, or to wish Jefferson's work product could undergo 'supervised' filter over-reading by some civil spy agency's Gpersons. There is enough muck to shun given these misgivings, from the legislator's view, to afford little will for actual history writing of the sort that would admit the US involvement for decades in moderate scale torture and eavesdropping; and no incentive at all to apply that loupe to current times and issues. Though, the expanded infobase, and research peership interchange fora panorama seems to be developing a new channel for telling the old story, even, thereby, making it easier for some congresspeople to hold hearings and subpoena the most knowledgeable people, even if occasionally the invitees are the least likely to quit parsing and start talking. There was an interesting, if alarming, discussion last week at an academic site regarding the legitimacy of olc as a legal institution, the thesis in that argument having been that olc only is responsible to provide wiggle room for autocrats, and is not obliged itself to be under the law; i.e., an attempt to discern the location of the indefinite zone between bad law and sloppy law, between disastrous advice and political cheerleading in the guise of cannonical research.