The key news here is that
the surveillance program goes back to the arrival of the Bush Administration; it seems that the events of 9/11 were quickly taken as a justification for the Administration’s programs—but they was not a causal relationship. And this means, in turn, that the Administration’s characterization of the program, as a hurried response to the disastrous events of 9/11, is a complete fiction. Shane also explains why Nacchio’s role was so important and why his decision to hold out caused the Bush Administration such distress:
http://harpers.org/archive/2007/10/hbc-90001415At the same meeting, N.S.A. officials made an additional proposal, whose exact nature is not made clear in the censored documents. “The court has prohibited Mr. Nacchio from eliciting testimony regarding what also occurred at that meeting,” one of the documents states. Another passage says: “The court has also refused to allow Mr. Nacchio to demonstrate that the agency retaliated for this refusal by denying the Groundbreaker and perhaps other work to Qwest.”
Another document, a transcript of an interview that the F.B.I. conducted with Mr. Payne in 2006, stated that the N.S.A. pressed its request for months afterward. “Nacchio said it was a legal issue and that they could not do something their general counsel told them not to do,” Mr. Payne told the F.B.I. “Nacchio projected that he might do it if they could find a way to do it legally.” Mr. Payne declined to comment.
In support of Mr. Nacchio’s accusations, his lawyers quoted from one of several lawsuits filed against telecommunications companies, accusing them of violating their customers’ privacy. That lawsuit, filed last year against several companies, asserts that seven months before the Sept. 11 attacks, at about the time of Mr. Nacchio’s meeting at the N.S.A., another phone company, AT&T, “began development of a center for monitoring long distance calls and Internet transmissions and other digital information for the exclusive use of the N.S.A.” The lawsuit contends that the center would “give the N.S.A. direct, unlimited, unrestricted and unfettered access” to phone call information and Internet traffic on AT&T’s network.
The claims about the defense are stridently—and very unconvincingly—countered by the lead prosecutor, Cliff Stricklin, who called them simply a “lie.” Were that so, of course, the Government should have let the information in and countered it. The fact that it chose a different path, namely invoking classifications to exclude it, suggests a strong concern that the accusations were truthful. The trial judge, Edward Nottingham, was a politically active Republican appointed to the bench by President Bush 41. The Denver Post profiled him as a judge who was “tough on lawyers.” In the Nacchio case, however, his legendary toughness has been reserved for defense counsel, whom he accused of filing frivolous motions. His rulings have consistently aligned the court with the prosecution, and he has been particularly supportive of Government views on secrecy issues.
In light of the current disclosures, however, the question is exactly what secrets the court and the Government are trying to conceal? Using alleged national security concerns to deprive a criminal defendant of a robust defense undermines confidence in the entire legal process, and gives rise to an appearance of a court and government participating in a vendetta instead of administering justice. Certainly these disclosures suggest improper conduct on the part of the Government: first, that the contract award process was skewered to punish Qwest and its shareholders because of Nacchio’s views—which were, in the view of most U.S. legal professionals, entirely correct. And second, they raise a fair issue whether the prosecution itself was not launched as an act of retaliatory malice. At this point, the number of such politically directed prosecutions is growing, and the Nacchio case may well be just another example. Of course the Nacchio case went to trial before evidence had come to the surface that detailed just how pervasive and entrenched the phenomenon of polticially dictated prosecutions was.
I have no view of whether Nacchio is guilty or innocent of the charges brought. But the way they were brought and their timing now seems very disturbing.
Whose interests are protected when a Republican judge excludes evidence that suggests wrongdoing on the part of a Republican administration? Certainly not the most fundamental interest. That is injustice.
more at:
http://harpers.org/archive/2007/10/hbc-90001415
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