Action Alert: Contact NSA Plaintiff Counsel [MDL, Discovery: Verizon E-mail in re MPUC]
This is an urgent action alert.
There is deliberate DoJ and defense counsel confusion being created.
[This is draft]. Feel free to use information. Let your readers and plaintiff counsel know that citations and updates will be provided.
Update: 1:25P EST -- Corrected link to Verizon e-mail (58 pages). Substantial content added at end: Draft Summary/structure to show how this fits in with the 2006 Election-decision, and a plan going forward.
Action Alert: Contact NSA Plaintiff Counsel To Remind Them Discovery May Continue Until The MDL Issues An Order For All Cases
What You Can Do
Contact Plaintiff Counsel at EFF, ACLU, and the Center for Constitutional Rights
Maine's MPUC lead plaintiff is Douglas Cowie [ jdcowie AT gwi DOT net ] who will be traveling for three weeks; his backup will be another Maine Plaintiff, Christopher Branson [ CBB AT mpmlaw DOT com ] who will act as temporary Maine Lead Plaintiff before MPUC, until Cowie returns from Canada. Here is a sample message from Branson with his e-mail: Ref [ MPUC Docket Enter this case number ( 2006274 ) in the "Case ID" at this link]
Contact the Plaintiff Counsel in the non-transferred cases in Oregon and New York. Encourage them to file motions before the final MDL transfer-order is issued which rely on the evidence given in the Maine Litigation: Verizon counsel has failed to deny something that they should have denied had there been no illegal activity. Rather, Verizon counsel in an email has left open the possibility that Verizon may have (arguably illegally) provided “authorization”
If you find yourself lost in all this information, and are unsure how to organize yourself, keep in mind a simple image: A single Helix. The line of evidence related to the AT&T-NARUS STA 6400 is one helix; the evidence related to the Verizon, is another.
The issue is that the two lines of evidence have common branches. This is how DNA is formed: Two apparently different, unrelated lines are actually related. The key will be to explore the common lines and branches between the single lines.
Think of each attorney in DoJ as a single point along that Helix. Each DoJ Staff Counsel is linked to something else; and there are lines of evidence that are outside their control, but directly point the finger in their direction. The DOJ Staff problem is that the information is open, publicly available, and directly implicates them in the illegal activity.
The information below is fairly voluminous, but it does one thing: It shows you how the open source information can be organized, discussed, and used to lawfully investigate and implicate the DoJ Staff Counsel, and personnel at AT&T, NARUS, and Verizon in the FISA-related violations. They all know each other; and they well understand that they have been caught doing something that they through nobody would ever figure out.
Small problem: They left many public clues to what they are doing. This shows you where some of that information is located, and how you can use it to show this American government cannot be trusted to enforce the law. New leaders are needed. This crew has failed.
For your reference, the links discussed at length are summarized here:
Common Branches Between AT&T, Verizon, NARUS, and the NSA
This is one of the key strands linking Verizon to the NARUS, AT&T, and the intermediaries between the commercial sector and the NSA. You'll notice many common names of conferences, review topics, and other material which closely matches what is in the Klein affidavit related to AT&T. Ref
The EOs outline what should have happened. The actual linkages show you how far AT&T and Verizon were deviating from the clear requirements within the Executive Orders.
Here are the precedents for state-level findings of fact being admissible to Federal Court. Ref. It appears DoJ does not want any state level entity to make any findings of fact, because this conclusion would be admissible before all Federal Grand Juries.
Evidence: Using Public Information To Fill In The Gaps
Ref Verizon, or someone appears to have removed the e-mail listed below linking Verizon, Amdocs, and Telcordia. You'll have to talk to the addressees to find out why these e-mails are no longer available publicly. The problem is they don't know how many other e-mails have been archived outside their control.
DOJ And Verizon
Here is a summary discussion on the important information that fatally destroys DoJ's claims of state privilege, which the Ninth Circuit and the District Court has not had the opportunity to review: Ref
As you review the information related to Drew C. Arena, keep in mind the larger DoJ committees. Viet Dinh while director of DoJ's Office of Legal Policy [OLP] was required to attend the larger planning meetings. Arena most likely was aware of these planning sessions, and should have been aware of the legal issues related to FISA as Viet Dinh has already discussed before the DC Bar.
This is the SAIC TRAILBLAZER: Ref Here is the SEC Filing by SAIC which includes this open discussion of the NSA program: Ref The issue is that using open source info, we can piece together what is, or should be going on, with NSA. SAIC is the firm that sold Amdocs -- the firm linked to the Israeli billing company Amdocs and NARUS through the intermediaries; SAIC also has a relationship with Sonex.
SAIC is linked with DynCorp and Telcordia through the Digital Network Enterprise [DNE], which is related to Titan, a firm which has shown an interest in the AT&T-NARUS related information. Titan, as you may recall, was involved in the prisoner abuse at Abu Ghraib. DNE also is associated with Booz-Allen, the firm awarded curious contracts in Louisiana after Katrina and Iraq. Recall, SAIC was awarded the FBI I-drive upgrade contract which was very costly, and was not successfully completed.
Telcordia: Verizon SubContractor For Testing And Certificatio
This in the information on Telcordia, one of Verizon’s certified test centers. Ref. The Telcordia effort falls under Executive Orders 12472, 1233, and 12148. The specifications which Telcordia uses to audit the Verizon Optical Fibers is MIL-STD-1521B; and the General Order Code GR-771, which relates to the durability and reliability specification tests done on Verizon's optical fibers. The factors include environmental wear, handling, and the amount that the fiber optic cable can suffer damage but still successfully transmit the necessary laser light-signal through the fiber optic cable.
Before Telcordia works on classified activity for a new program, the NSA security personnel will visit the location and conduct a review to verify the procedures in writing match what they are actually doing. This review is documented, and the DoD-NSA Defense Plant Representative Office [DPRO] or Defense Contract Audit Agency [DCAA] will be able to provide you copies of the dates these certifications were done; and show you exactly who did the reviews, and what types of audit sampling they did to verify that the product was being used for a lawful purpose.
Through the Inspector General’s office you can also request a Telcordia manpower study, and seek information non which specific personnel were working on which NSA-related programs for Verizon at the Telcordia certification center, what they were told, and what assurances they were given in writing as to the legality of the ultimate use of the products Telcordia was certifying for Verizon.
Telcordia's testing and certification will also have common lessons which the NAVY uses when training SEALS how to do underwater tapping of the Optical Fibers. Ref The details of the Fiber Optic tapping and testing used in conjunction with the NARUS STA 6400 are located here.
If you are interested in learning more about Telcordia, and reviewing their Presentation template, here is a sample: [Look for the PPT Presentation at the second link: Ref ]
Defense counsel has requested a stay pending MDL transfer of all cases. The Court has granted the stay on the proceedings. However, not all cases have been transferred. The Vaughn ruling does not apply to the non-transferred cases. However, the MDL court reminds us that ongoing court actions and orders, until transferred to the final MDL court, remain in full force.
Further, defense counsel have incorrectly argued that the 9th Circuit Court of Appeals ruling on the narrow issues of the DoJ appeal will automatically apply to all cases, whether they have or have not been transferred. This is not correct. As discovery continues at the state level, there is additional evidence supporting the non-Vaughn court claims.
The correct approach is to consolidate all the complaints into a single claim; then proceed on the basis of the consolidated complaint. DoJ and defense counsel have not made any showing that the 9th Circuit Ruling on the narrow issues under appeal, will automatically apply to all ongoing discovery, and other claims. Rather, the correct approach is for DoJ to resubmit their appeal to the 9th Circuit based on the to-be-consolidated claims. Moreover, this cannot happen until the MDL order for the remaining cases has been issued.
NSA MDL: Multi Jurisdication Litigation
The current situation is this:
Said another way: The problem the NSA litigation has is that defense counsel wants to delay the discovery by arguing that the MDL order is pending. But until the MDL Court issues the final order for all the cases, the pending orders, outside Judge Vaughn's current order, remain in full force. This means, contrary to DoJ assertions, discovery can continue into the non-Judge walker cases related to Verizon, and all cases which have not been yet transferred by the JPML.
DoJ is incorrectly suggesting that the 9th Circuit Opinion on the narrow AT&T issues could apply to all cases, even on evidence that would show there has been illegal conduct; or that the claim of state secrets privilege is dubious. It would be inappropriate for the Ninth Circuit ruling, which is based only on the AT&T information, to broadly apply to the Verizon evidence which has not been reviewed, and does demonstrate the full picture.
In short, publicly available Verizon-related information substantially confirms, mirrors, complements, and is consistent with all the information contained in the NARUS STA 6400 affidavit related to AT&T; and is essentially the same data file. In general terms if you look at the data file linking NARUS and AT&T; the same players are associated with Verizon: Conference reports, associations, discussion panels, key personnel, and DoJ points of contact.
If we go the other way, when we take a look at the Verizon-related information, we can get some insight into the gaps in the AT&T-related information; and show that the DoJ claims of state secrecy are dubious; and that the publicly available information has been released by witnesses that have made out of court inconsistent statements. This tilts the scale away from a bonafide claim of privilege; and suggests that the inconsistent statements are more related to illegal activity, something which the Executive Orders prohibit being classified at any level.
Because the emerging Verizon-related information suggests the activity is illegal, and that the Verizon information complements and fills in the gaps of the AT&T-NARUS nexus, it would be improper for the Ninth Circuit to narrowly review the NSA litigation in terms of only AT&T information.
Rather, it would be more appropriate to stay the Court of Appeals until the entire record can be consolidated; and then provide a single set of evidence that wholly supports the assertion that the activity is illegal; it is outside what FISA permits; and the Verizon General counsel has commented on matters which DoJ said could not be commented on.
The current path asks the 9th Circuit to review a narrow picture; not consider the other publicly available information; and fails to consider the multiple lines of emerging evidence that confirm that AT&T and Verizon were interacting with CALEA personnel who have already been linked with NARUS and AMDOCS.
Further, given the open information already links Verizon, Amdocs, NARUS, and AT&T, it would be inappropriate to make any finding or conclusion about the merits of the consolidated litigation or the merits of the state secrets claims at the court of appeals until there has been a better assessment and demonstration to the District Court that the open information relating to AT&T is substantially complemented by the open information related to Verizon.
It would not be proper to narrowly review the NSA litigation, and possibly permit a state secrets claim while there exists Verizon-related evidence which wholly destroys any DoJ contention that the matter cannot be discussed. Rather, it has already been discussed by Verizon counsel; and Verizon counsel failed to initially deny what DoJ emphatically states cannot be commented on either affirmatively or negatively.
Moreover, the scope of the Maine Public Utility Commission order to Verizon that it deny in writing certain activities is wholly insufficient to capture the larger course of conduct which Verizon counsel, rightly or wrongly, asserts is legal. Even if Verizon were to deny all the MPUC statements, it still leaves open the option that Verizon is unlawfully permitting NSA and/or other intermediaries, subsidiaries, and entities access to data without proper legal authorization as required under FISA.
Until the larger issues of the AT&T-Verizon nexus is understood, it is premature to apply any 9thh Circuit Ruling in re AT&T-Vaughn, and use this as a basis to jettison all Verizon-related evidence that otherwise destroys the DoJ contentions. Further, we have not even addressed the emerging lines of evidence from the state-level litigation in Missouri, New Jersey, Maine, and Vermont suggesting that DoJ Counsel has violated State law and is improperly threatening state officials from performing their jobs. In the case of Missouri, it is a violation of the state regulatory code for any attorney to make any statement with the intent of influencing the decision making as to the merits of the case. Arguably, DoJ Statements before the New Jersey, Delaware, Vermont, and Maine utility regulators and the filing of public lawsuits achieves that unlawful objective and violates Missouri State law. This is a matter for the State Officials to investigate.
In Maine, Haas has been linked with alleged violations of Maine State law requiring service of all parties; and Maine makes it clear that attorneys shall fully comply with Attorney Rules [ Sections 3.4 - 3.7 ]. These failures by Haas triggered a written admonishment by another Maine party.
Haas is also involved in the New Jersey litigation. Ref. Arguably, it is improper for DoJ to threaten litigation, with the hopes of dissuading state official from enforcing the law. Missouri’s, for example, has specific state laws which prohibit this type of conduct: It is not proper for DoJ to make public statements about the merits of the State investigation in the open media; and it makes no difference that the DoJ Staff made these comments in another jurisdiction. The net result is DoJ litigation and commentary on the merits of the NSA litigation is an unlawful violation of Missouri State law, and explicitly outlawed as improper attorney conduct.
The new information below firmly establishes the links between Verizon, AT&T, NARUS, Amdocs, and the NSA.
Lets take a look at some information, and if you let this sink in over the next few days, you’ll see the issues: There is evidence which the Ninth Circuit Court of Appeals and Judge Vaughn have not been given access to; this information relates to cases which have not yet been transferred; and they are material in showing there is a link between the NSA FISA violations, Verizon involvement, and AT&T.
The same names, conferences, associations, and law enforcement personnel are flowing back and forth between the AT&T and Verizon. To get an idea of what has been linked with Verizon, you can click on the NARUS STA 6400 information that was thought to have been narrowly related to only AT&T, NARUS, and Amdocs.
Loading the Verizon E-mail
Corrected Link: This is very important: Verizon Counsel in a written e-mail using the Verizon e-mail system has fatally failed to deny something that he should have denied. [Slow in loading 5.0MB pdf, may take several minutes, be patient it is worth it: Click link at Google, MPUC links cannot be directly accessed Carefully read pages 55 through 58 of 58]. When you're done with those four pages, you'll be ready to digest the following discussion related to the MDL.
Key: Focus on page 57. This (apparently) is the internal Verizon e-mail. You'll notice the "@VZNotes": That is how they internally communicate. Here are open copies of the Verizon internal e-mails; and the names of the Verizon employees Ref. This will be important for discovery, and the House Judiciary Committee investigation: Names, times of conversations, who was present, which memos they had access to, and who outside Verizon at Amdocs, NARUS, AT&T, and DoJ was receiving direct Verizon communications related to the NSA activity.
Also, note counsels comments in the internal memo show:
Drew C. Arena, Page 57 QUOTE "I am not aware of any statute that would prohibit Verizon from allowing a government entity (or a third party for that matter) access to a Verizon facility" ENDQUOTE -- is at odds with the later, "we cannot confirm or deny"-statements from Verizon, DoJ, and AT&T
This change, and the fact that Arena has commented on the matter, as a fatal problem: It is public comment on a matter that, later, we're asked to believe cannot be commented on.
[Keep this in the back of your mind as you review the MDL information below]
Note: Name "Lahoma M. Wright" on the e-mail header on page 56 doesn't match anything public related to Verizon; just Ref. Assuming This is a bonafide, non-public name, of Drew's Office Manager: Executive Assistant. Assuming she is a new hire; the fact that her name isn’t matching anything in Virginia suggests she’s from another state.
Discussion: Fatal Failure To Deny [Note: Link corrected, sorry]
As a reminder, Verizon Counsel in a written e-mail using the Verizon e-mail system has fatally failed to deny something that he should have denied. [Slow in loading 5.0MB pdf: Click link at Google, MPUC links cannot be directly accessed See page 56-8 of 58].
A. Drew Arena is linked with Intelliseek and the NARUS STA 6400 CALEA information, and Intelliseek Conference in the Klein Affidavit; and
B. Drew is in the Verizon Compliance area, and should know not to comment on a sensitive matters.
C. Verizon has an e-mail system, which has been linked with Amdocs (telecom billing, intermediary for processing subpoenas, and linked with NARUS) Ref
Note in the following Verizon internal e-mail
1. Name SACRA: He is linked with appearances before the FCC, which refused to review the information about the illegal NSA activity: Ref; and
2. Tal at Amdocs created a NARUS-like system for processing e-mails: This is the patent Tal is linked with Ref
3. Telcordia is the firm that does the certification testing for Verizon equipment. The only way that any equipment can be attached to Verizon is if it has gone through one of the special testing centers that are specifically tailored to meet Verizon’s needs.
From: GARY M. SACRA/EMPL/MD/Verizon
Line1 ----- Forwarded by GARY M. SACRA/EMPL/MD/Verizon on 03/28/2005 06:43 PM
Line5 Michael" To: GARY M. SACRA/EMPL/MD/Verizon@VZNotes
Line6 Michael.Fargano@cc:firstname.lastname@example.org, "Jean-Paul Emard"
Line7 qwest.com Givoly" email@example.com, "Hall, Bob" firstname.lastname@example.org,
Line8 email@example.com, firstname.lastname@example.org, email@example.com,
Line9 03/24/2005 07:09 firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
Line10 PM Subject: LIAISON - TMOC to NANC LNPA WG - RE: Request for Information Regarding VoIP Service
This e-mail, along with many other Verizon documents, amounts to evidence which the District Court has not been provided; but is part of the public record. Judge Vaughn (apparently) has only looked at the information related to AT&T. The 9th Circuit is also only looking at the AT&T information; but the DoJ is asking that the 9th Circuit Opinion, if it strikes down the state secret claims, be broadly applies to all non-AT&T related litigation which was never part of the record before either Judge Vaughn or the Ninth Circuit.
DoJ is asking that all discovery in all cases stop. However, until the MDL Court under Vaughn accepts all the cases, then this ongoing discovery in the other cases continues. There is nothing the Defense Counsel can do to both delay the final MDL, while at the same time asking that the 9th Circuit Court of Appeals broadly apply their ruling to matters and evidence which the District Court has not made part of the original opinion.
There is something you need to know about the Verizon counsel that made these written statements: He is a former DoJ Asst. Attorney General. This means that he was in a position to know exactly the significance of the question which the Maine Lead Plaintiff provided; and they should have known, if there was a legal issues, to remain quiet. However, the Verizon counsel chose to speak and electronically transfer the response, which did not include the current “we cannot confirm or deny”-statement Verizon is using.
Under the rules of evidence, once the Verizon Counsel has made that tacit admission and failed to deny something that he should have denied, this does two things: It allows that failure to deny/tacit admission to be introduced; and it also is a basis to impeach Verizon as a witness.
Broadly, this has bearing on the larger litigation by the plaintiffs against the AT&T, Verizon, and NSA. Once it is shown that Verizon Counsel should have denied something, but left open the possibility that there was some sort o agreement.
Based on a cursory review of the Verizon E-mail system, it is possible to link the Verizon General Counsel to the NARUS system. This is important in that the CALEA process, which the Verizon Counsel fully knows about, provides that only lawful procedures be used.
However, Verizon Counsel has testified before Congress to the effect that only lawful transfer of data was occurring. Yet, this testimony directly contradicts the Verizon General counsel failure to deny the illegal activity.
Verizon Counsel was in attendance with the same NARUS STA 6400-related Conference [Klein Affidavit] which discussed the CALEA requirements; and the issues of intermediaries. Again, Verizon Counsel in the Maine litigation before the Maine Public Utilities Commission has been asked to deny that it did not transfer any data. However, under the Verizon General Counsel approach – which would have been consistent with the Intelliseek conference information – said that Verizon could have authorized the NSA to have access, and this would have been a lawful authorization.
The other problem with broadly applying the 9th Circuit ruling on the narrow issues, and not including the ongoing discovery in the non-transferred cases has to do with the implications of the Verizon E-mail.
The same names related to AT&T-Amdocs-NARUS appear on the conference repots related to Verizon. One of the firms which is directly linked with the White House is NeuStar, which bought an intermediary called fidicianet – a firm linked to the CALEA conference, NARUS, Admocs, and Drew C. Arena. Ref
Again, to restate: The 9th Circuit Court of Appeals only has information which Judge Vaughn has reviewed; but this information may not necessarily include the full record which includes Verizon E-mails, which are publicly available, and part of the ongoing discovery by the non-transferred courts.
It can be shown that Verizon personnel have:
This means one thing: That the open source information, which Verizon General Counsel has released, and knows is publicly available, has not been reviewed by Judge Vaughn; is not subject (yet) to the MDL transfer order; and remains part of the ongoing discovery process which is outside Judge Vaughn’s stay order.
Here’s the basis for this contention:
QUOTE: "For example, many judges
do not realize that the mere
pendency of a motion or of an
order to show cause before the
panel in no way limits the
jurisdiction of the court in
which an action is pending. Nor
does such pendency before the
panel "affect or suspend orders
and pretrial proceedings" in that
court. All discovery in progress
and all orders of the transferor
court remain in effect after
transfer unless and until
modified by the transferee judge
who may modify, expand, or vacate
prior orders of the transferor
court. Once the panel enters an
order of transfer, of course,
then the transferor court loses
all jurisdiction over the case
until further order of the MDL
1. Vaughn’s order did not vacate
2. Vaughn’s order does not apply to
the non-transferred cases.
3. Vaughn has no jurisdiction to
affect the other courts until the
MDL court actually transfers the
Not all the cases have been
Until transfer occurs, Vaughn has
no jurisdiction to apply the
Stay to the non-transferred
Rather, all ongoing discovery in
the non-transferred cases may
Request not to proceed until
CASES HAVE NOT BEEN TRANSFERRED:
VAUGHN ORDER HAS NO BEARING ON
ONGOING DISCOVERY ORDERS ALREADY
IN PLACE in other courts; nor
does it prevent the other courts
from issuing guidance up until
the case is finally transferred.
Yet, this what AT&T Counsel is saying: [FROM]
"The transfer process is now
underway, but the initial
transfer order included only 17
of the more than 30 actions that
have not been tagged for
consideration. Issuance of
further conditional transfer
orders from the JPML is expected
soon, but completion of the
transfer will take time to
[A] It’s irrelevant that the JPML will take time.
[b] The ongoing discovery at the non-transferred cases can continue.
[C] The litigation at the non-transferred cases can proceed.
[D] Counsel is free to work outside Judge Vaughn until the JPML transfers the final cases.
[E] Plaintiff counsel are allowed to file motions for discovery;
[F] The other courts may make findings of fact on the other cases which have not been transferred to Judge Vaughn;
[G] Nothing the Ninth Circuit might do affects what the other District Courts can still do: Permit expanded discovery of Verizon; accept motions to expedite review of Verizon-related allegations.
There is nothing the DoJ can do to stop this; the longer the JPML takes to transfer the cases, the longer the DOJ has to face more open evidence linking AT&T, Verizon, and violations of the law; and apparent failures to not stop or rule out violations of the law when they have a duty to do so.
This is not correct from the Counsel Letter: "Now that
this Court has been assigned the
MDL, the proceedings in the
Ninth Circuit will affect all of
the actions consolidated before the
In truth, the Ninth
Circuit will only review the
narrow questions; but until the
MDL transfer is complete, the
original courts and their
existing orders remain in full
force. Counsel has provided no
authority to show that ongoing
discovery, and other motions
related to prospective MDL are
affected by ongoing appellate
review. Also, the 9th Circuit is
not being asked to review the
entire case; only the narrow
issues in the existing single
case. It is a different question,
which the Ninth Circuit has not
been asked to review, what is to
be done with the larger number of
cases, and the evidence other
counsel have been able to
discovery outside the Vaughn
Decision. Moreover, there is state-
level litigation against the NSA
which the DoJ has not requested
the 9th Circuit court review; nor
does the DOJ action and appeal
include all NSA-related
litigation by any party. To
accomplish this, the DoJ must
wait for the MDL transfer order
to be complete; then have a
triable decision under the
entire MDL, then appeal that
judicial decision to the
appellate court. The opposite
would ask that we take a narrow
decision, then broadly apply that
appeal to other evidence,
motions, and ongoing discovery
which is wholly inconsistent with
the DoJ basis for appeal on the
narrow issues on the decision
Vaughn Made on the litigation
After complete MDL transfer, then
we have a new set of issues which
face the single courts review.
DoJ has prematurely mandated the
Ninth Circuit review the narrow
issues, and incorrectly asks that
that narrow ruling apply to all
cases outside their appeal. This
is outside the Ninth Circuit’s
Counsel has not provided any
argument, nor has anyone been
offered the right to challenge
the assertion that the narrow
ruling in one case should or
should not apply to a broader
ruling that may affect many
cases, wholly inconsistent with
the original claims and discovery.
Rather, the way forward is for
the cases to be consolidated into
a single complaint, then begin
the consolidated litigation on all
the evidence, all the
allegations, and all the
state/local claims. Then DoJ may
appeal (a second time) to the 9th
Circuit on those broader claims.
AT&T counsel: Appear to hope to have the Verizon-related evidence ignored, and the Ninth Circuit review only look at the AT&T information.
Linking Verizon’s Certification Center To NSA
Here is the budget document on Telcordia's assistance to the NSA: Ref. The Executive Orders listed in the guidance trace back to the National Security Council [NSC], not just the NSA.
These EO's, linked to Telcordia and Drew Arena, are like ORCON: They prohibit classification of illegal activity; the problem is that, despite requirements, DoJ-NSA have not publicly provided the information to Congress. Drew should have known this before he commented to the Maine lead plaintiff.
It is neither reasonable, nor lawful to violate FISA:
QUOTE:All reasonable and lawful
means must be used to ensure
that the United States will
receive the best intelligence
The EOs linked to Verizon, Telcordia, and the NSA clearly emphasize that the activity shall be lawful:
QUOTE 2.5 ATTORNEY GENERAL
As defined in the Foreign
Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.), shall be
conducted in accordance with that
Act, as well as this Order.
Think back to what is in Drew’s E-mail message on VZNotes, and recall that Drew has participated in the CALEA conference discussing the lawful use of information:
QUOTE Such participation shall be
authorized only if it is
essential to achieving lawful
purposes as determined by the agency head
or designee. ENDQUOTE
Recall, Qwest was not satisfied with the procedures outlined; and Drew’s e-mail does not prove that the activity was legal. It merely starts from the assumption that the activity was legal; and that anything Verizon did was lawful. This is something that Verizon has to prove to the Maine Public Utilities Commission, and not something that can be simply asserted.
The issue is that the way that the MPUC has asked Verizon to assert its non-violations, is it assumes that Verizon actually transferred the data. As the MPUC-directed denials are currently crafted, they do not compel Verizon to deny the use of intermediaries; or broad authorization of NSA or others to access the facility.
If you look at Drew’s e-mail, you’ll see that the way the MPUC-directed denials are worded, they will not close the gap on whether Verizon has denied all forms of potential assistance, use of, or methods to permit other entities including NSA, intermediaries, or other firms that may provide the billing/subpoena support, from circumventing Verizon approvals, and doing things on their own. In short, the MPUC-directed denials in now way will be sufficient to hold Verizon to account for what is likely occurring: The use of non-Verizon resources to facilitate the illegal transfer, without FISA court orders, of personal data to the NSA.
The problem for the NSA is, that regardless what Verizon is ultimately held to account, they still have the obligation to follow the law. Notice this language from the Executive Order number linked to Telcordia:
2.12 INDIRECT PARTICIPATION
No agency of the
Intelligence Community shall
participate in or
request any person to
undertake activities forbidden by
The question is: Are there entities that are described as “non-intelligence community entities” that fall outside this restriction? Arguably, the designation of “other entities” may be a legal workaround, but it essentially violates the statute intent: The NSA cannot go around the law.
Recall the “twisting of language” that occurred over Guantanamo in the Bybee Memo. In the end, after all the hairsplitting on what did or did not constitute abuse, the Supreme Court looked at the broader Geneva requirements and stated that they were requirements. Again, rather than follow the rules in Article 3 – and refrain from engaging in abuse, outrages against prisoners of war – the Addington-Gonzalez-Yoo crowd twisted the language.
It is likely they’ve done the same above, as they did with the Guantanamo-Rendition excuse, to create some sort of entity that “falls outside the definition” but essentially achieves the same objective: transferring data without FISA court oversight.
If this is the case, why does the White House keep secret who is or is not an advisor or member of the advisors?
If they're "out" of the intelligence community, then there is no volition; all they have to do is say, "Hay, there was no violation, because they're not part of the intelligence community." But they wont' do that because they know that the activity was illegally authorized to circumvent FISA.
This language means that the implementing policies, guidelines, directives, and other orders have to be consistent with the law:
The NSC, the Secretary of
Defense, the Attorney General,
Director of Central
Intelligence shall issue such
directives and procedures as
are necessary to implement this
Heads of agencies within the
Intelligence Community shall issue
directives and procedures
this Order. ENDQUOTE
CONGRESS/COMMITTEE OVERSIGHT -
QUOTE All procedures
promulgated pursuant to this
Order shall be made available to
the congressional intelligence
Either Congress got the information is lying; or Congress knows it didn't get the information, and refuses to do its job.
Either way: This Congress is reckless and Cannot be trusted to follow or enforce the law.
There's another EO linking Telcordia, the National Security Council, and Verizon:
They didn’t follow this in re
- Identifiable damage
PROHIBITED TO CLASSIFY ILLEGAL
QUOTE 1-6. Prohibitions.
1-601. Classification may not be
used to conceal violations of
law, inefficiency, or
administrative error, to prevent
embarrassment to a person,
organization or agency, or to
restrain competition. ENDQUOTE
1-303. Unauthorized disclosure of
foreign government information or
of a confidential foreign source
is presumed to cause at least
damage to the national security.
There's a third EO that links Telcordia, NSC, NSA, and Verizon, also presenting another problem:
Budgets: Must Comply with
Constitution [A1 S9]
Secretary of Defense is
designated as the Executive Agent
for the NCS
National Security Council must
coordinate with the states [This
EO Recognizes a State Law role]
This is what fell apart during Katrina, Iraq, and 9-11:
(1) The National Security Council
a. Advise and assist the
President in coordinating the
development of policy, plans,
programs and standards within the
Federal government for the
identification, allocation, and
use of the Nation’s
telecommunications resources by
the Federal government, and by
State and local governments,
private industry and volunteer
organizations upon request, to
the extent practicable and
otherwise consistent with law,
during those crises or
emergencies in which the exercise
of the President’s war power
functions is not required or
permitted by law; and
Also, the policies are to be
coordinated with the States,
clearly indicating that DoJ has
no basis to eject the States from
reviewing non-compliance with the
Advise and assist State and local
governments and volunteer
organizations, upon request and
to the extent consistent with
law, in developing plans and
procedures for identifying and
satisfying their national
security or emergency
A requirement includes following the law.
QUOTE: (e) Department of Justice.
The Attorney General shall, as
necessary, review for legal
consistency with the antitrust
laws, all policies, plans or
procedures developed pursuant to
responsibilities assigned by this
FCC has a role: INVESTIGATIONS -- Not this is contrary to what the FCC said; and raises questions about the Verizon-FCC e-mail related to MR. SACRA: What did Verizon do to get the FCC to not do what is outlined below:
QUOTE: (h) Federal Communications
Commission. The Federal
Communications Commission shall,
consistent with Section 4(c) of
(1) Review the policies, plans
and procedures of all entities
licensed or regulated by the
Commission that are developed to
provide national security or
communications services, in order
to ensure that such policies,
plans and procedures are
consistent with the public
interest, convenience and
(2) Perform such functions as
required by law with respect to
all entities licensed or
regulated by the Commission,
including (but not limited to)
the extension, discontinuance or
reduction of common carrier
facilities or services; the
control of common carrier rates,
charges, practices and
activation, deactivation or
closing of radio stations,
services and facilities; the
assignment of radio frequencies
to Commission licensees; the
investigation of violations of
pertinent law and regulation; and
the initiation of appropriate
The only way the FCC can credibly say it is doing anything is if it is reviewing facts. They have refused to do so.
12333 CONSULT WITH SECDEF:
the Secretary of Defense, with
respect to communications
assigned pursuant to Executive
Order No. 12333
Telcordia is the NSA subcontractors that is linked with SAIC's TRAILBLAZER; and has confirmed EO requirements to not classify illegal activity. Telcordia is one of the centers that does the certification for Verizon equipment; and is also on DoD contract for the NSA.
All of this information is available through the DoJ procurement office: Ref. The DoJ Procurement office has been implicated in this illegal activity:
1. Contracts known to not comply
2. Failing to ensure that the
CALEA-warrants and legal
requirements were implemented
3. Awarding contracts to, and
making payments to contractors
that were known to be in
violation of the law
4. Failing to report contract
fraud and other known illegal
5. Working with DoJ Counsel to
illegally prohibit Congress and
DoJ OPR from gathering information
about problems with DoJ IG audit
Ask the NSA plaintiff counsel whether they have considered 28 USC 1491, or may want to discuss a claim by the losing-NSA contractors which have, arguably, been denied a contract for not cooperating with the illegal activity.
Ref: Until the MDL is final, and all cases have been transferred, the other cases may continue their discovery, and work with others to file claims under 28 USC 1491, in the Federal Claims Court for violations of the Constitution.
Added: 8/17/2006 1:35EST
One of the facilities which act as a center to test Verizon optical fibers, on the NSA contractor list, is subject to Executive Orders prohibiting classification of illegal conduct. Because of the connection between the firm and Verizon, the General Counsel should have known the Executive Order compliance requirements before commenting on the questions from the Maine lead plaintiff.
Rather than take Verizon’s current path (of refusing to either confirm or deny the activity), the Verizon General Counsel commented. Because the Verizon attorney left open the possibility of authorizing the NSA access (thereby permitting, not stopping violations of FISA), Telcordia is allegedly part of an alleged conspiracy to deny rights 18 USC 241.
Once the Verizon General counsel [a] failed to “neither confirm nor deny,” the allegations, but [b] commented on the possibility of authorization, this amounted to a tacit admission and is an exception to the hearsay rule. However, the written evidence isn’t merely a report of what the Geneva Counsel said, but are the Verizon Counsel’s written, memorialized words, permitting far easier access to the court for purposes of impeaching Verizon as a witness.
Verizon’s central problem is that it has made inconsistent statements:
[a] First, commenting on a matter it could have chosen to remain silent; and documenting those comments for anyone to read; then reversed it self by
[b] Claiming the matter, that it otherwise previously commented on, could neither be confirmed nor denied.
Considering the General Counsel’s position with Verizon Compliance, and his experience as Asst. US Attorney General, it is not reasonable to conclude that this Verizon Counsel was confused, not informed, or inexperienced. He was well aware of the BNL funding issues which supported the shipment of arms to Iran – in the early 1990s Drew C. Arena was part of the investigation team that looked into the use of the Italian bank as a conduit to illegally provide arms to Saddam Hussein. He well knows the rules of evidence, the importance of sensitive issues, and well understands the importance of classified information. He had so much trust within the Department of Justice that he was assigned to the European Union, where he was given great responsibility.
Verizon’s inconsistent statements destroy DoJ’s (inappropriate) contentions before the public utility commissions in Vermont, Missouri, New Jersey, and Maine that these are matters of state secrets. Rather, the opposite appears to be true:
[a] Drew Arena well understood how the intermediaries were used to provide billing service and arrange for the processing of subpoenas;
[b] Verizon is in a position to do exactly what Arena said was possible: Simply provide “authorization” for the NSA to have access to the facility; and Verizon could escape any direct connection. Thus, when Verizon counsel says [paraphrasing], “We did not provide billing information these or those firms”, they are correct – someone else or an intermediary may have done just that.
The evidence before us clearly shows that Drew Arena or someone with his name and matching duty title at Verizon gave a presentation to the CALEA industry experts. What is curious is that Arena’s presentation was essentially in line with the other presentations on how to lawfully comply with FISA; using intermediaries; and interfacing with the firms that would coordinate the billing and subpoenas.
What is most curious about the list of names, firms, and subjects is that the same entities that were involved in these CALEA briefings were also connected to the NARUS STA 6400, and all the other conference information.
The point is that DoJ’s assertions that this matter is a “state secret” is only credible if we are to believe that the open discussions, written memos, and public testimony before Congress are removed from the Record. This is absurd. Verizon Counsel has openly appeared in public, asserting that only complies with the law. This was the basis for the industry to provide access to the law enforcement: Assurances that their firms technology would only be accessed for lawful law enforcement purposes.
What is striking is that despite the public promises and assurances from the Department of Justice that DoJ would only follow lawful procedures, we now learn that Verizon may have done the exact opposite of what it publicly stated were the basis for its resistance. Rather than meet that legal threshold Verizon said was at the heart of industry reluctance to embrace the open technology access, Verizon (apparently) turned the oversight, access, and reviews over to other firms and entities. This is arguably reckless.
How does Verizon or any other firm or legal counsel in the Telecom Associations explain the disparity between:
[a] On one hand, claiming to be concerned with privacy rights; and testifying that they were only following lawful subpoenas; then
[b] on the other hand, (apparently) failing to ensure that the public assurances to Congress and the State Citizens were honored.
It is one thing to wave ones arms and protest in public that technology standards should or should not be compatible with law enforcement objectives; it’s quite another thing to, after making those protests or assurances, to feign ignorance or refuse to comment on matters your counsel has publicly contradicted.
This is a serious matter. It drives a stake in the heart of industry trust. Public assurances that attorneys have made under oath to members of Congress, and written policy and privacy standards appear to have been violated, ignored, farmed out, and otherwise not honored. Again, make no mistake: If any Verizon customer were to make a similar breach of a contract obligation, you can rest assured that the Verizon bill collectors and credit reporting agencies would quickly move to (arguably) destroy that customer’s ability to change service, establish credit, or otherwise freely engage in personal protest against Verizon unsound business practices.
The point is simple: Verizon make public statements to assure the public; and its counsels written comments have failed to satisfactorily close the door to the issues. Rather, at best, the Verizon counsel has made inconsistent statements; and the entire line of public statements Verizon has provided can be reasonably called into question.
But the problem for Verizon is deeper. It now appears that the very e-mails it has provided, published, and otherwise made available have been deleted, removed, and otherwise not available to the public. Verizon counsel needs to explain what triggered this removal; and whether it hopes to have the grand jury, state citizens, and state attorney generals believe something that is not true.
When evidence is removed, destroyed, or not made available to fact finders, it is reasonable to make adverse inferences. This is a common practice by the courts. One example is the Morgan Stanley E-mail destruction: In the case of Perlman V. Morgan Stanley, the court made adverse inferences upon leaning Morgan Stanley had destroyed, not provided, or otherwise not properly archived e-mail: That the aim of Morgan Stanley was to hide evidence of wrongdoing related to their knowledge of problems, but their failure to report that information in the public statements which Mr. Perlman relied. Perlman had initially offered to settle for a small amount of money. Imagine his surprise when the court awarded him hundreds of millions of dollars on the basis of adverse inferences.
The same can be done with Verizon. The issue is simple:
[a] Why is Verizon counsel making inconsistent statements;
[b] Why is Drew C. Arena leaving open the possibility that Verizon has provided access to the NSA
[c] Even if Verizon were to comply with the Maine Public Utility Commission [MPUC], and publicly deny that it did not provide any data to the NSA, why should we believe this assertion, given what we know about Arena’s involvement, knowledge of, and participation at the conferences whereby intermediaries were discussed?
The Executive Orders, listed on the Department of Defense Descriptive Summaries for the Verizon test center at Telcordia, prohibit classification of illegal activity.
Review if you will what we know about Arena’s response to the Maine Lead plaintiff. His response wasn’t a denial; but it was somewhat a stunned response as if to say: Of course this is legal.
Put that aside for the moment. Think back to the early repots of the White Phosphorous use in Iraq. Recall the initial responses. Did they deny White Phosphorous? Not I initially. They did the same as Drew: they asserted that the use of that banned weapon was legal.
Put aside the issue that Drew and someone in the Army may have been confused about what was really going on; or what the actual laws prohibit; or how the actual operations may or may not violate the law.
The point is that there is a common pattern of conduct in both the NSA-FISA, and also the Iran war:
[a] There are clear rules
[b] Those rules were violated
[c] People involved in those violations were led to believe, or incorrectly believed, that the use of that illegal procedure, weapon, or process was somehow appropriate
[d] rather than deny the illegal activity, they first asserted that the banned weapon, procedure, or process was permissible
[e] Subsequent revelations showed that the banned process, weapon, or procedure was in fact well known, ignored, and not followed
[f] Then the denials started.
Notice the inconsistency:
Let’s take the broad view: Drew is a former Asst US Attorney General. He well knows the internal policy meetings. Viet Dinh was also a member of these internal policy working groups. It is not reasonable for anyone to believe that a former US Assistant US Attorney is unaware of the inner workings of these policy meetings. Rather, it is reasonable to conclude that because he was hired by Verizon, it was because of his experience with these DoJ inner workings. It’s not credible to believe that Drew is someone who just walked off the street, is a recently hired assistant fresh out of law school, or someone who barely scraped by when passing the Bar exam. He’s well connected, experienced, knowledgeable, and most of all: He’s an attorney, who is subject to the State Disciplinary Board for attorney conduct: Either
[a] Drew publicly commented on a matter that is secret, and should be investigated for failing to comply with the Verizon policy that there can be no comment on classified activity; OR
[b] There was no Verizon policy because the public and attorneys had been unreasonably assured that the conduct was lawful, but there was no effort by Verizon to ensure that the government was fully complying with the law, and that Verizon failed to adequately oversee the intermediaries, subpoena processing people, and those who were involved as billing intermediaries; OR
[c] They’re making this up as they go along; publicly making statements that are not consistent with the law; and their public denials that they are not doing something related to specific firms, does not accurately reflect the true relationship between Verizon, NSA, the billing intermediaries, and those firms which Verizon knew or should have known were well aware of the CALEA requirements, but Verizon failed to adequately oversee, and ensure that the public statements to Congress that only lawful activities were occurring were not supportable by any serious Verizon General Counsel fact finding, nor a serious effort by the Verizon Board of Directors to ensure that these public statements were true, fully supported, and otherwise something that the Verizon Audit Committee was fully briefed.
These are Statement of Accounting Standards [SAS] 99 issue. SAS 99 is a standard that auditors, the audit committee, and the board of directors at Verizon should know about. SAS 99 outlines the indicators of fraud; and should have sent warning signals to the Board of Directors:
[a] How do we explain these inconsistent statements;
[b] Why is there no clear policy on how to publicly comment to these inquires on sensitive matters, and legal issues
[c] Why is our compliance attorney making statements on a subject that Verizon Counsel has later said we cannot comment on
[d] Is there a problem with our hiring, screening, and ongoing compliance program
[e] Have we fallen down on the job of adequately overseeing the intermediaries, billing companies, and those at Verizon we work with to ensure that the subpoenas are properly processed.
The record before us paints a different picture: Verizon appears to have known that the NSA was given access to the Verizon equipment; and it also appears that Verizon was in a position not oversee the intermediaries, conduct audits, and otherwise do some sort of sampling to ensure that the procedures were correctly followed.
It appears as though something is wrong with the Verizon internal controls; and this is something that the Verizon auditor should have detected, reported to the Board of Directors, and discussed as a concern with the Verizon Audit Committee. Again, Verizon is stuck: Either
[a] Verizon Audit Committee, auditors, and board of directors failed to catch this problem; OR
[b] Someone told the Verizon audit committee, board of directors, and auditors not to make any comments on these internal control problems, not document the problem, and make no written evidence that this internal control problem was known; OR
[c] As with the US illegal use of incendiary devices, someone inside the Department of Justice [Bybee], White House [Gonzalez], Vice President’s office [Addington] had a conference with Verizon in early 2001-2 timeframe and outlined what they needed, and made assurances that this was legal; yet Verizon apparently failed to ensure that the asserted-legality was legal, and subsequently commented on what they were asked about, without comprehending that they were exposing themselves to possible witness impeachment before a grand jury conducting a war crimes investigation.
Verizon counsel should be commended for walking into this mess. What makes this more absurd is that Verizon email also shows that Verizon Counsel well discussed the legal requirements of the various FISA and other statutory provisions. The problem is that these e-mail discussions, and requests for legal documents are publicly available; and prove one simple thing: You were in a position to now the legal requirements; and that you were having a discussion well before 2006 on what the legal requirements are.
This is a major problem for Verizon General Counsel. Under the Model Rules, once someone is linked with alleged criminal activity, they have an obligation to remove themselves. Moreover, when dealing with issue of war crimes, violations of the law, and other conduct that is not consistent with public publicly, Verizon General Counsel cannot credibly claim that the work products related to these commutations are privileged: It is openly known the specific dates the Verizon General Counsel discussed the legal requirements.
When someone knows the law, ignores it, or otherwise fails to ensure that those clearly promulgated requirements are followed, this is a reasonable basis to make an adverse inference: Verizon was arguably reckless inter alia
The problem for Verizon is that the above can be proven using the open information; no discovery is required; and the process is something that even the most stupid blogger can comprehend.
Let’s consider the issue of the MDL, the 9th Circuit Court of Appeals, and AT&T counsel gymnastics.
The problem is that DoJ and AT&T counsel appear to create confusion, and make people believe that “nothing can be done” and ‘we have to wait.” This is incorrect.
[a] The MDL order is only narrow to a portion of the overall NSA plaintiffs; all plaintiff actions which are not part of that order cannot be controlled by Judge Vaughn;
[b] The MDL Court reminds us that the until (1) the cases are transferred and (2) the controlling judge issues an order on those transferred cases, the original court has jurisdiction, and discovery can continue. This simply means that DoJ-AT&T assertions that the 9th Circuit Court of Appeals could throw out the entire plaintiff claims, even those Judge Vaughn Walker has not reviewed.
This is not acceptable. Consider the above discussion related to Drew Arena. Arguably, using open information, it is possible to make a case that Verizon was reckless; and that they have failed to ensure the law was followed. Under the Executive Orders which cover the Verizon test center, it is known to the Verizon General Counsel and Verizon employees that this Executive Order makes it illegal to classify evidence of unlawful conduct. Drew’s comments are not consistent with the Verizon-DoJ-AT&T public statements.
At this juncture, the issue is simple: Will the non-sense from Verizon, AT&T, and the DOJ stand, namely: Are we to believe that the Ninth Circuit Court of appeals, without reviewing any of the open evidence which the State of Maine has well reviewed, is to ignored? Even if this were true, at a minimum what is needed is an effort to immediately challenge the DoJ-Verizon-AT&T Assertions; and prepare for the Supreme Court.
The issue is simple: What remedies are needed if the Judge Vaughn Order is incorrectly construed to mean either
[a] all discovery is (incorrectly) stayed, even those that are not part of the MDL transfer order in re Verizon and Drew’s comments; or that
[b] the 9th Circuit court opinion on a narrow AT&T issue is (incorrectly) broadly applied to all evidence, claims which were never raised in the district court, or part of the appeal, and could very well tip the scale in favor of discrediting any claim of state secrets by either AT&T, DoJ, Verizon, or any other defendant.
A reasonable case can be made that the Verizon has engaged in illegal conduct; and it is using the state secrets privilege to bar discovery on matters that they know are illegal; and are related to substantial compliance problems Verizon has. This remains an open question. However, Drew’s fatal comments and open discussion are at odds with the subsequent assertions that there was no problem; and that Verizon could neither confirm nor deny the issue. Moreover, given what we know about Drew’s involvement with the CALEA briefings, it’s stunning to see the many overlaps with AMDOCs, NARUS, and the rest of the CALEA industry leaders in the intermediary and billing business.
My concern is simple: DoJ appears to have asked the world to believe that the ‘confusion’ of the MDL [which DoJ created by requesting it] mandates we delay all action. Again, the MDL Court has already reminded the courts that discovery can continue until the final transfer order. This final transfer of the remaining cases has not occurred.
Once we consider the Drew information, and the further damage this does to the DoJ position before the 9th Circuit Court of Appeals, we see that the DoJ has a problem: State Secrets cannot be credibly asserted. Drew
[a] openly discussed the possibility of another arrangement between NSA and Verizon;
[b] failed to deny what was at issue
[c] subsequently cannot explain his previous statements, or why they are now not consistent with the Verizon-DoJ-AT&T (arguably sham) assertions that the matter cannot be discussed.
[d] Verizon’s problem is that it has both (1) Commented on the matter; then changed to
(2) Asserting we cannot comment
[e] Has not been subject to cross examination, impeachment as a witness; nor have his statements been credibly compared with Verizon, for purposes of impeaching Verizon; nor has this evidence been weighed against the standards applicable to dubious claims of state Secrets.
Drew is well trained on state secrets, FISA, and attended the CALEA conference, He’s on the Compliance committee. He’s attorney. He knows about rules. The last thing we want to think is that when an attorney says something, they’re not using all their experience, and failing to make a statement that fully protects their clients’ interests. Never mind the fact that Attorney General Gonzalez cannot get his story straight.
The core problem with the MDL and the 9th Circuit is that the very information that would subject Verizon to impeachment as a witness, has not been reviewed by the District Court; and DoJ is in no position to credibly argue with anyone that the 9th Circuit Opinion, however broadly or narrowly applies, credibly will or will not cover the Verizon-related evidence which is outside the AT&T litigation.
Once Verizon open evidence is compared with the NARUS STA 6400 information in the Kline Affidavit, we see the two sides come into plaint view. The problem is that DoJ has appealed only part of the story; and has not permitted the District Court to comment on the entire record which is included in the Maine Public Utility Commission evidence.
Once a state level fact finder makes a finding of fact, that fact can be admitted to the District Court. Whether the issue is or is not a secret is meaningless: Once the open record firmly establishes that Verizon is not reliable; and that the first statements from Drew Arena were more reliable, the entire state-secret argument falls away.
Rather, the problem for Verizon, DoJ, and AT&T is the opposite: how do they plan to explain away the Executive Orders which the Verizon test center had part of the DoD Descriptive Summary: The requirement to ensure that no illegal activity was classified.
Again, think broadly: Under these executive orders the FCC has a role as does the Attorney General to ensure the communications standards are enforced; that FISA is followed; and that all guidance is consistent with the law. The open record indicates that Verizon wasn’t doing this: its procedures did not ensure that FISA was violated; rather, it (apparently) delegated this task to “someone else” at an intermediary, billing firm, or some other entity which Drew should have known exists. Regardless of how or why, Verizon remains responsible for ensuring its clients’ data is protected. Verizon cannot show the MPUC that it has done that, nor is it willing to provide a sweeping assertion of denial related to all intermediaries or other means by which Verizon may have provided, authorized, permitted, or allowed customer billing data to flow indirectly from Verizon customers through other firms to the NSA. Again, the issue isn’t that this is or isn’t desired; the issue is that this was illegal, and Verizon was in a position to know the law, and arguably has failed to ensure that the data transfers were based on lawful subpoenas.
It remains to be understood what connections these intermediaries have with NeuStar, Amdocs, and NARUS. What we do know is that the left and the right hand sides of the lines of evidence, when brought together paint a far different picture:
[a] Verizon should have known about the FISA requirements;
[b] Verizon personnel were in attendance at the DOJ, CALEA, and NARUS STA 6400 conference material in the Klein Affidavit, linked with AT&T;
[c] The same players openly connected using non-classified information to both NARUS, AT&T, and AMDOCS, are now linked through the billing companies, intermediaries, and CALEA to Verizon.
There is no reasonable basis to conclude that the narrow review of the AT&T information will be sufficient until the district court is given the chance to review the broader, public, and open evidence.
Bluntly, the 9th Circuit Court of Appeals should be stayed until the US Supreme Court intervenes; in the mean time, all discovery outside the MDL, and part of the non-transferred cases should continue; and the public should be encouraged to continue making adverse inferences:
It’s one thing for the government to assert dubious legal arguments. Quite another to discover that Haas has failed to comply with the secrecy requirements that he knows, or should know, are required under the Maine MPUC requirements which compel strict compliance with the State Bar Disciplinary Standards.
It is one thing to attempt to dissuade state level officials from enforcing the law; its quite another for the DoJ to pretend that Verizon has not make inconsistent statements fatally destroying DoJ’s foundation for those threats against the State Officials in Missouri, Vermont, Maine, and New Jersey.
American citizens should take a step back and realize what has happened. The Verizon General Counsel has failed to deny something; then the story has shifted. The issue isn’t simply what is or isn’t’ going on, but who in the Department of Justice, if anyone, can we trust to ensure that the laws are followed, enforced, and fully respected.
Keisler and Haas in the Maine, Vermont, New Jersey, and Missouri cases have demonstrated that they are willing to threaten lawsuits in order to dissuade state official from enforcing the law. It is absurd for them to say that ‘supremacy” trumps state law: No, the issue is that when the Federal government refuses to follow or enforce the law, the only option is for the States to step in.
DoJ fails to show us how “not enforcing the law” or “not investigating the issue” will clarify anything. This is absurd. The way to clarity is through fact finding. Recall then Representative Cheney’s words in the wake of the Iran-Contra affair: [paraphrasing] “We need a complete investigate to find facts.” Today, Cheney is the target of a civil lawsuit; and he shows every inclination to retaliate against those who dare speak the truth.
From all accounts, its appears as though DoJ is attempting to delay the discovery not to streamline anything; but to dissuade public fact finding, and adverse conclusions before the election. Putting aside the issue that the President will likely prevent DoJ from investigating these allegations of voter tampering, the issue American voters need to discuss is simple: What adverse inferences do we need to make in light of what we know.
When there is a claim of state secrets, the government has the burden of proof. The more we learn from the open records, the more it appears as though this claim is dubious, and that we have the opposite: There is illegal activity, and is unlawfully being classified in violation of Executive Orders.
DoJ has the burden to explain why, despite Drew’s fatal failure to remain silent or refuse comment, that we should believe the claim of state secrets. It is beyond the 9th Circuit Court of Appeals jurisdiction to review patterns of conduct, evidence, and other relevant evidence which are part of the ongoing litigation; but the District Court has not included in the single decision upon which DoJ appeals.
DoJ has not met its burden. DoJ has narrowly defined the litigation to things it can explain. However, DoJ cannot explain:
One would think that such an important program, given presidential attention would trigger some sort of rigorous review, a set of guidelines on how to protect this secret information, and some sort of hint that there was a robust system of controls in place to ensure that, outside FISA court review, the DoJ, White House, and NSA were fully complying with the law.
Yet, the record indicates the opposite:
Drew’s comments fatally destroy all Presidential assertions to the public; and materially undermine any reasonable assurance this Congress has given to the public that they are fit to lead, remain responsive to the rule of law, or can be trusted in any capacity to lead this country.
Nobody is saying that the President may not engage in lawful surveillance. The issue is that the President, when he makes an assurance, that assurance should mean something. Despite the fatal comment from Drew, and the mounting evidence that there are control and governance issues at Verizon, everything we’ve heard tells us one thing: This President, and the Congress have failed to ensure the law was followed; and the DoJ Staff have material problems with severe violations of the law that are reportable under the State Bar.
This crew cannot be trusted to do their jobs. They cannot be trusted to follow-up on small problems. They clearly cannot deal with a major problem. There is no reason to given them any more time, another chance, or any consideration.
they cannot be trusted to govern. They refuse to lead. They refuse to set the example. They refuse to enforce standard. They refuse.
The problem isn’t “out there.” The problem is that they are incapable, reckless, and incompetent. It doesn't matter why; and it doesn't matter who has been fooled into believing their non-sense. The only issue is: What is to be done to protect this Constitution. This leadership has demonstrated that it will commit war crimes; and then retroactively hope to change the law.
What if Rwanda had done the same: “Oh, we’re sorry – even though we committed Genocide, we’re going to change the law making Genocide something that is OK.” This is no different than this absurd effort by DoJ, Congress, and the White House to change the guidance on torture. The issue isn’t’ simply whether the CIA is or is held accountable; the issue is whether Members of Congress will or will not be held liable for failing to stop these illegal war crimes.
Some have suggested that DoJ will not prosecute. That is fine. But under the laws of war, any nation may prosecute war crimes. It doesn’t matter that DoJ refuses to prosecute the CIA; or that the DOJ refuses to enforce the existing or draft war crimes standards. Other nations may do what this government refuses to do.
Think of that: the only thing that is actually going to ensure the laws of the Untied States, and the treaties that We the People have agreed to follow, is through the possibility that another nation, not our own, is going to enforce the law. That is stunning. It tells us one thing: this nation no longer can claim sovereignty. A sovereign nation will enforce the laws of the land; and ensure that the rule of law prevails.
It is one thing if the only thing that is keeping this nation in check is the possibility that other nations might do something; the problem We the People have is despite combat losses in Iraq, defeat against Hezbollah, and complete exhaustion of our combat reserve forces, this crew on the National Security Council continues to recklessly violate the law, pretend nothing is going to happen, and then blame others.
This leadership, despite having no power and resources, chooses to defy the rule of law, and then pretends that there is nothing that is going to stop them. This alone should be a basis to call into question their competency. Despite having neither the power nor the resources to insulate themselves, nor deploy combat forces to protect vital resources, this leadership wants someone to believe that no nation will be able to impose its will, enter US territory, and lawfully remove the alleged war criminals fro prosecution in other lands.
The facts before us are at odds with the claims this leadership offers:
[a] Geneva is a requirement;
[b] Violations of Geneva can be prosecuted by any nation
[c] No law can retroactively be passed to immunize illegal violations of international law
[d] it is preferable that the host nation prosecuted war crimes; when they are not capable other bodies need to be brought into the nexus to enforce the laws of war.
This is where We the People find ourselves: This leadership, inter alia
 Has violated Geneva;
 Hopes to retroactively change requirements
 Has no demonstrated capability to defend itself in the court of law
 Had no demonstrated ability to deploy combat forces to protect this nation
 Cannot credibly argue that there is any credible legal or power projection device that will physically prohibit any nation nor set of nations from lawfully entering US territory, and physically removing the alleged war criminals to other lands.
It remains up to the White House, DoJ, and National Command Authority to explain:
[a] Why should we believe you’re immune to war crimes?
[b] What do you propose will enforce these new rules?
[c] How do you propose to use any legal argument or military force to prevent the nations of the world from enforcing the law against American leaders?
[d] How do you explain the retroactive change to the requirements?
They cannot explain anything. Rather, they chose in 2001 to wage war, and attached with that decision was the requirement, not the discretion, to also follow Geneva. These requirements were known, well discussed, and the leadership well knew the requirements under Geneva: You must protect prisoners; you may not wage illegal war; and you can lawfully be put to death for waging illegal war and refusing to stop what you have the power to stop.
Despite Hamdan, this crew is not going to stop. Despite FISA, the contractors are willing to go along, not deny, but publicly comment using E-mail on how the laws might be circumvented.
Someone within Verizon doesn’t quite comprehend the mess they are in; or what could occur under the laws of war: If Verizon, as it appears it is, has unlawfully assisted war criminals in waging illegal warfare, then just as the civilian Zyklon B contractors in Nazi Germany were indicted, so too could the Verizon General Counsel, Board of Directors, Audit Committee, and CEO for failing to remove themselves from what they knew, or should have known, was contrary to the law. Moreover under 18 USC 241, Verizon could face the prospect of being a co-conspirator in an alleged conspiracy to deny rights.
It is within this Nexus, DoJ wants to dismiss the information that Drew has provided to the lead plaintiff in a written e-mail: “Pretend it didn’t happen.”
Wrong answer, Keisler.
Judge Vaughn and the 9th Circuit did not have the opportunity to review the Drew C. Arena memo: It didn’t exist at the time Judge Vaughn made his opinion; but it remains part of the ongoing discover in the broader NSA-related plaintiff action. Once you combine the open information about NARUS STA 6400, CALEA, the intermediaries, and the billing companies, the Verizon internal e-mail clearly shows: The same players involved in the AT&T Kline Affidavit surface with Verizon. There’s no telling how many other lines of evidence are available in plain view. This Is not a matter of privilege; this is a matter of criminal law, and illegal classification of criminal conduct.
The Executive Orders prohibit this classification. And the National Security Council knows that the procedures, guidelines, and policies have to follow the law. The President has already admitted that he has an “oversight” process that defies the law; and despite that “oversight” Drew cannot get on the same page as Keisler. That doesn’t send a very good signal to anyone about the competence, leadership, or ability of the Vice President. It is Vice President Cheney who is the one who actually chairs the National Security Council Meetings, not the National Security Advisor, as we learned from the 9-11 commission.
The problem with the National Security Council is that it is the central body that works with FEMA to organize responses. FEMA is not the controlling agency; the NSC is. This responsibility is also clearly outlined on the same Executive Orders linked to Verizon’s testing center.
Someone has a leadership problem. And no American should walk away with any believe that these matter are secret. Rather, they are criminal conduct; and the problem with the Vice President is that he in the middle of this. He knows the laws; he demanded investigations in 1987; but in 2006 he wants none of that. We can make the reasonable, adverse inference that the reason Keisler, Haas, Gonzalez, and other have refused to investigate is that they are protecting the Vice President, as did Libby.
The problem is that this information is known, not protected, and is not an issue which the Vice President can control. The voters know. And the voters also know that despite the leadership failure, reckless disregard for the law, this Congress refuses to review the matters.
The voters have seen enough. It is clear that there is a reasonable basis for the states to investigate; and it is reasonable to conclude that the DoJ hopes to delay fact finding until after the election. Rather, the reasonable course of action is to make the adverse inference that the existing Republican leadership in Congress is unfit to lead, is reckless, and is wholly incapable of asserting, as required, their 5 USC 3331 oath of office obligations. They cannot credibly be believed. None of them. Yes, this is exactly why Rove and the Vice president are stunned by the rebuke against Lieberman. The voters have woken up.
They way forward is simple: To assert the rule of law.
This is what needs to happen: If the 9th Circuit Rejects the AT&T litigation, and says that the matters cannot be reviewed, then the States need to work together, to openly share the information they have:
Then, the next step is to find a contractors that can bring a 28 USC 1491 claim, and challenge the existing NSA procurement process used to support this illegal activity. This is something the General Counsels from the losing contractors will be able to formulate. Under the procedures of the Federal Claims Court, a Constitutional Issue is something that is very important. The contractor may choose to bring suit against SAIC for their alleged involvement in illegal activity; and the use of TRAILBLAZER; and then the subsequent refusal to award a contract to a contactor who has a demonstrated capacity to comply with the law.
The point of this litigation is simple: To remove the MDL-decision, and take the Federal District Court, and potential Congressional legislation that will take the FISA-related litigation and take it back to FISA; and create a second line of litigation that uses the open evidence, and litigates against the NSA, the NSA contractors, and other defendants who have permitted the Constitutional violations.
There is precedent for litigating against the NSA using 28 USC 1491; there is also open records of the NSA being challenged in public using 28 USC 1491. The point is simple: FISA created certain requirements; the NSA has responsibility for deploying a system that complied with the law. The point of the litigation is for the losing contractor, because it has standing, to make a claim against the NSA for having chosen a defective product, and a program that violates the law.
At the same time, the Plaintiffs involve din the NSA litigation need to prepare for an appeal to the US Supreme Court, essentially capturing the problems of the DOJ. This means asking the Supreme Court to inter alia:
[a] Find that the 9th Circuit Court of Appeal findings are narrowly applied only to AT&T;
[b] Rule That tit is not proper for state-level evidence from Maine related to Verizon to be rejected without review by any Federal Court;
[c] State It is improper to shift the burden from the government to the plaintiff on state-level evidence which DoJ has not protected, and the Verizon General counsel has publicly commented on;
[d] Remind the court of appeals and district court that the Verizon General Counsel comments in the e-mail needs to be a basis for the Plaintiffs to impeach as a witness the Corporation of Verizon, as it relates to all comments related to their public “refuse to confirm or deny”; and that the court needs to review this information for purposes of impeaching Verizon and ruling that the claim f state secrets is dubious;
[e] Remind the lower courts that the lines of evidence from the NARUS STA 6400 (in the Klein Affidavit on AT&T) relates directly to the same personnel, issues, and conferences that are also linked to Verizon;
[f] That Verizon’s narrow statement that it has not directly provided information to a specific company, or “these” or “those” firms is meaningless; this leaves open the possibility that Verizon, as Drew says, has provided “authorization” to the NSA; and that Verizon could be using intermediaries for purposes of handling billing and subpoenas; and it remains a question whether Verizon has or has not appropriately managed these intermediaries for purposes of corporate governance and SEC-reporting requirements;
[g] Find that it remains an open question which specific DoJ Staffers have or have not been complicit in the illegal violations of the law; and to what extent the Executive Orders have been illegally violated in classifying illegal activity;
[h] The above needs to be focused on one goal: To show that the 9th Circuit Court of Appeals ruling, however it turns out, cannot reject the entire MDL cases which have not been reviewed by the 9th Circuit; and that the basis for the Appeals Court ruling on the District Court litigation, as applies to all cases, fails to consider the full open evidence that shows the state secrets claims is dubious;
[i] Find that the District Court and 9th Circuit orders have been inappropriately and broadly applied by DoJ to thwart all fact finding in non-covered cases; and
[j] Remind the public that fact finding related to allegations of illegal conduct can occur in 18 USC 241 (Conspiracy Against Rights); and 28 USC 1491 (Federal Claims)
If the 9th Circuit Reverses Judge Vaughn’s decision, there needs to be an expedited review by the Supreme Court:
Example: DoJ has yet to explain how they can claim privilege or state secrets on a mater they claim is classified; yet their former Asst. Attorney General openly discussed the very thing which DoJ would have us believe “nobody can talk about.”
Bluntly, the Verizon General counsel has discussed the very thing which DoJ would have us believe “nobody can admit or deny.” Again, the burden rests with the Government to prove this claim of privilege; how DoJ hopes to demonstrate that this Verizon evidence from non-AT&T related courts can be ignored remains to be understood.
Again, once Verizon General Counsel commented on this issue, DoJ has not been subject to impeachment: No court has been able to use this inconsistent statement to evaluate to what extent, using open non-classified sources, DoJ’s claims of privilege can be believed. Rather, the Verizon General Counsel amounts to a fatal admission, a failure to deny, and a tacit admission, that there was some sort of thinking that would permit [a] open discussion of the activity; and [b] a means to “legalize” what is a violation of the law: Transferring data without adequate compliance with the FISA warrant requirements as it relates to US citizens. If the program, as Gonzalez, Keisler, and the President argue, is classified and lawful, then the Verizon General counsel should have been on the same page and refused to comment. The fact that he did comment, and left open the possibility that Verizon is using intermediaries, or providing access to the NSA or other entities means that Verizon’s public denials before the MPUC, although interesting, are not sufficient to completely account for the intermediaries which Drew C. Arena well knows are used in the CALEA process.
Verizon has yet to be cross examined on the public statements; fatal inconsistencies; and there has yet to be a full public accounting of what has broken down in the oversight system within Verizon. We can only speculate this relates to the same breakdown that occurred in re Katrina, Iraq, and the dubious response to 9-11: Incompetent people have no clue what they are doing, and do not deserve any public trust to remain in any position no power. Despite this mess, this Congress refuses to act.
Put aside the above, and think in General terms of what we know. We’re seeing a consistent pattern from Iraq, Katrina, 9-11, and the NSA. The point isn’t who is or isn’t violating the law. The point is that despite these indicators of problems, Congress refuses to gather facts; and assents to absurd legal agreements. The claims of “national security” are no credible. Rather, the evidence tips in the favor of illegal activity.
Let’s think worst case: The case is ejected, and despite failing to review the Verizon information, the Supreme Court says, “We can’t look at this.” Well, the voters can make some adverse inferences, and make some informed judgments and decisions, just as they have done in Connecticut. Keep in mind, the same people who hare refusing to call for impeachment, and are getting in the way of state-level investigations, are those who are thwarting state level efforts to call for Congress to do something. In short, this government is no longer responsive to the people. If you like to see what an unresponsive government can help create, visit Rwanda: Look at the thousands of young children with their arms sliced off because there was a complete breakdown of law and order. That’s inaction in action.
Adverse Inferences: Clear Messages To Voters
The DoJ Staff and White House working with the RNC hopes to delay the news until after the election. They have one goal: To avoid accountability for illegal activity. What is absurd with this thinking is that despite the issues being classified, the open record available to even the most stupid of bloggers clearly demonstrates there is a common line of evidence between AT&T, NARUS, and Verizon. Congress incorrectly believes that inaction before November 2006 will solve the problem, and protect the President. Big problem.
In truth, there is still another election. Recall the election cycle: The Congress is put into office three weeks before the president. This means, that as more information surfaces, and even if the voters refuses to wake up by November 2006, between 2006 and 2008 there will be more evidence.
By 2008, when there is more evidence, the voters will have more information. In the first three weeks of January 2009, the house of Representatives could feasibly vote to impeach, and the Senate could have a trial.
The point is simple: Even if the Supreme Court strikes down the District Court, the voters still will have enough information to make an informed decision. Again, even if the voters do not wake up by November 2006, there is still two more years. The point is simple: No matter what happens, do not give up. Keep the pressure on the president, continue probing for open evidence; and start now to lay the foundation for the 2008 Congressional races. There is three weeks in January 2009 where the President and Vice President can still lawfully be removed from office.
The point is that the excuse of “oh, we have another election, and we can’t do anything” is absurd: there’s always an election: that’s the purpose of having elections: To force the Congress to do something. This congress does the opposite: Claims “the election” prohibits action. Wrong. The election is the action. If we don’t get it right this November, we can get it right in 2008. Eventually, someone is going to be able to gather the evidence, and bring war crimes charges against the President; if not us, some other nation.
Here are the general themes:
This leadership fails to demonstrate that it can put into force the information and experience they’ve been paid to use. Leaders are those who translate lessons, experience, and a broad perspective to lawfully solve problems. This leadership is stupid: Despite asserting the (unlawful) power and right to ‘do whatever they wanted,” they still screwed up. Despite saying that they could (illegally) use any military resource, they still botched Iraq and Katrina. This isn’t in dispute: There are thousands of people who are still without sufficient care in Louisiana. There is no basis for this leadership to say to anyone that our system is a better alterative. The American system and model is now the alternative that people don't want and rightfully hold with contempt: It demonstrates daily what democracy does when it fails. In theory, it sounds (maybe) nice; in practice it doesn’t work in Iraq and Louisiana. The point isn’t that “this is all we have.” The point is that’s the attitude: “This is what we’re stuck with.” Wrong. We can improve things. We can find a solution. The point is that we need leaders who are going to say, “this is what isn’t’ working; this is what we need to fix; and this is our plan to fix it. Then do it, then ensure that what we’re doing is lawful, and is working.” It’s not that tough. This crew can’t do that. This crew, despite granting itself the permission not do things without reviews or feedback, can’t get it right. Clearly, what’s needed is what they refuse to face: Feedback, adjustments, and corrections. The only way to correct this problem is to find new leaders who, like Ned Lamont, are willing to stand up and call this failed American leadership what it is: Failed.
The message the voters need to hear others openly talking about: