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Thursday, August 17, 2006

NSA: Applying Helix Evidence Model To Diggs Ruling

We raised the notion of the Helix Evidence Model. For purposes of this discussion we distinguish the surveillance program of AT&T-NARUS related litigation; from the Verizon billing issues. This discussion hinges on an understanding the Helix Evidence Model as it relates to the common lines of evidence branching between Verizon and AT&T.

The Helix Model permits us to move from either Verizon or AT&T, and work toward the other Constellations in the helix during discovery. AT&T and Verizon have, as we discovered, common lines of evidence. It is possible to start from either telecom company, and use open information to find out information about other illegally classified government activity. This note explores the Diggs ruling in the context of the Helix model.

* * *

Judge Diggs had an interesting ruling: She stated the activity was not lawful, but didn’t permit review of the billing. This seems curious. Although the Court found that the failure to secure warrants was not legal, the issue is: The court distinguished between one type of violation and another.

If we are to believe that the President’s refusal to obtain warrants in the surveillance program made that activity illegal, then the classification of that activity is a violation of the law. Once something is no longer legitimately classified, then it loses all claims to be a state secret.

The question is how to we reconcile the different outcomes:

  • 1. The surveillance program is illegally, and unlawfully classified the activity and violations; but

  • 2. The billing program, which arguably uses the same non-application of warrants, would (arguably) lose privilege; but the court said that the billing issue remains a state secret.


  • A. How can a government that violates the law when it comes to warrants, enjoy any protection of state secrets when the same government conduct is not legitimately classified?

  • B. Why would we believe that the same government that ignores the laws, and makes dubious defense of one set of activity, is not also making dubious arguments in another?

    It does not follow that they would lawfully follow the law on expectation of no review or discovery in one case; but using essentially the same people in an analogous program, the results would presumably be the opposite: [a]lawfully classified; [b] a legitimate claims to state secrets despite the (1) illegal conduct; and (2) dubious nature of that classification; and (3) open evidence which casts doubt that the subject cannot be discussed – it already has.

    In short, the courts opinion that there were open comments essentially proving there was no defense on the surveillance program, is the same argument that could be applied to the billing:

  • A. There is open evidence;

  • B. The Verizon counsel has substantially left open the possibility;

  • C. The same players are involved in both the Verizon and AT&T situations

  • D. The evidence showing that there has been illegal activity in the now-defined illegal activity of the government and AT&T, is also linked with the billing company any Verizon.

    * * *

    What’s interesting is that the open evidence available to show the surveillance program is illegal, can also be applied to the billing company:

  • A. Same players

  • B. The same firms

  • C. The same legal arguments

  • D. The same secrecy

  • E. The same lack of judicial oversight, and violation of separation of powers

  • F. The same failure to protect rights, follow the law, and otherwise ensure that the warrant requirements were followed.

    Unless the we’re dealing with two different constitutions, and two different set of rules, it’s unclear how one set of illegal activity could be commented on; but a second set of illegal activity, from the same government is above examination.

    The problem is that Verizon’s counsel did not say that there was something lawful occurring; they said that the law – which the President was otherwise violating – permitted what they were doing. It makes no sense that the same law would permit and forbid the same people doing the same thing: Not ensuring that they were following the FISA requirements; securing warrants; and ensuring that the intermediaries, billing companies, and the sub contractors handling the subpoenas for the billing documents were also following FISA.

    In short:

  • A. If there are FISA violations, then it means that it is illegal to classify that activity;

  • B. Illegally classified activity, and failures to secure warrants in one situation means that similar failures to secure warrants in another set of data transfers would also amount to an unlawful classification

  • C. Once something is illegally classified, it does not follow that it enjoys immunity from review; rather, the illegal activity should lose a claim of state secrets, and be also found to be an unlawful classification of similar violations.

  • D. Once something has been defines as illegal, or a course of conduct is not lawful – in this case failing to secure warrants – then state secrets cannot apply, and there is no lawful basis to invoke state secrets on a course of conduct that otherwise [a] violates the law; and [b] can be openly examined on the basis of non-classified information; and [c] counsel has made inconstant statements about the existence of the program.

    In theory, the arguments the court used to find that the surveillance activity was illegally, should have also been applied in a like manner to the other public evidence and argument related to the billing. The only difference is that Verizon’s initial public comments may not have come to the attention to the court; and the DoJ and contractors were quick to circle the wagons.

    Yet, as with the surveillance activity, the President openly admitted that the billing practice was occurring; and as with the surveillance activity asserted (rightly or wrongly) that the activity was lawful. The Diggs court found that the President’s commentary on the surveillance activity amounted to an admission; the same argument and conclusion should have been reached when it came to the Verizon counsel comments, and the President’s and Gonzalez statements on the billing activity.

    * * *

    Let’s suppose, for the sake of argument, that the surveillance program and billing program are actually part of the same system: Something the NSA is doing in concert with the telecoms. It appears that DoJ hopes the courts reach the opposite conclusion: That each variation of illegal activity is something that is distinct, when in practice it’s simply a new way to violate the law in violation of the separation of powers.

    Recall how Congress was “sold” on the program: Not with a full review, but with a closely controlled review. If DoJ can similarly create the impression that each violation of the law is something that can be isolated to a different program, then theoretically, DoJ could simply recast the illegal activity as something that is a state secret all the while knowing that the common course of conduct – the FISA violations – were in full swing.

    It also makes no sense to argue that the same people who otherwise ignored the law, would then turn around a correctly follow the law in another situation; and have a bonafide claim of state secrets. This makes no sense. In fact, the opposite conclusion is more credible: Even when they were given the legal authority to change the law, they still went behind the Congress and Courts back and did it anyway.

    * * *

    Let’s consider the issue of the billing from both the AT&T and the Verizon perspective. We have two lines of evidence, both are related; and one set of evidence springs from AT&T; a second set springs from Verizon.

    As we branch out from AT&T under the Diggs ruling, those factors that are not lawful, and which also connect to the Verizon-billing issue should also be something that is discoverable. In other words, by finding that the AT&T-surveillance activity is not lawful, this would expose the entire illegal activity to discovery.

    Further, given the proven links between the AT&T- and Verizon-lines-of evidence, it standards to reason that once we move from the AT&T evidence, and examine the full scope of the illegal activity, we will likely find :
    [a] A line of evidence similarly establishing that the Verizon-billing activity is not lawful; [b] The defenses for that illegal activity will fall away; and
    [c] The billing issue will likely have open evidence that similarly is not credibly defended.


    Now that the AT&T surveillance program is not lawful, it remains unclear how that illegally-classified activity will result in public examination of that activity; and how those AT&T-related disclosures will then translate into revelations of what is actually occurring in the Verizon-billing issues.

    How will voters and Members of Congress reconsider the (once blindy accepted) White House responses to the House Judiciary Committee? Ref

    * * *

    Same Helix, Different Perspective

    Given the common lines of evidence between AT&T and Verizon across the helix in the surveillance and billing program, DoJ hopes to shift the burden of proof, and not explain why the dubious line of evidence and arguments would not also be applicable against the same helix.

    (1) The pattern of conduct is consistent. They only asked for immunity, not for a change in the law. The law permits them to change the law; they chose to ignore the law, and ask for absolute from Congress. Congress has no power to grant pardons.

    (2) There are multiple actors with a common objective. Now that we know there have been violations of FISA, we also know that there’s been a conspiracy. The issue is what is the ultimate objective of that Conspiracy; and how are individual Members of Congress implicated in that conspiracy to violate rights.

    (3) The memos are openly prepared. Recall the letters between Specter and Cheney: They both spoke about the surveillance as a single subject: Interchanging within the letters the surveillance and Cheney efforts to thwart Senate review of that illegal conduct. The letters confirm there is a shared understanding of the illegal activity: It is part of the same overall effort; and the ruses and stalling are also linked to the same players in the same helix.

    (4) Smoke does not disconnect the helix. DoJ relies on confusion, inaction, and a smokescreen as a basis to distract attention from known abuses, and say that the abuses cannot be comprehended or investigated. Although this is illusory, DoJ hoes to shift the burden of proof (from state secrets claims) using a dubious smokescreen, to those who have been subjected to violations of their Constitutional rights.

    (5) The same Constellations are part of the Helix. It does not stand to reason that the DOJ OPR would only ignore some violations. Rather, the opposite is more likely: That the violations are widespread, and the ABA rules of professional conduct have been thrown out the window in order to prevent discovery of the helix. Every name leads to more evidence. If there was no conspiracy, we would have the opposite: Dead ends.

    (6) The DoJ and White House goals are not to govern, but to draw a line on accountability. If they can frame the issue narrowly, then state that the review is over, as they did with 9-11, the issue is not resolved, but closed. That is not fact finding, but a shroud, as DoJ hopes to place over the State utility commissions. This is obstruction of justice and unlawfully interfering with state level officials in the performance of their duties. One cannot draw a line by changing the law; the correct approach is to change behavior. What remains secret is no catalyst to change. Rather, in order to place the shroud on the helix, DoJ has to openly violate State Law, without a credible claim of privilege.

    (7) The common actors have too much experience to claim one set of activity is illegal; while the other set cannot be examined. Rather, they knew the law and the requirements applied to all activities. They shared the same training, conferences, and meeting minutes. It remains to be understood who will appear first with the evidence related to the now-adjudicated-illegal activity. There is nothing the President can do to keep people from discussing in open the evidence of illegal activity.

    (8) State level rules of evidence are different. Maine permits a change in position as evidence of original negligence. Once Members of Congress seek to retroactively change FISA, this is not a solution; the states view this as an admission of the original violation and the recklessness of the government. Verizon cannot simply assert compliance; it has the burden to prove it remains in full compliance. This becomes more challenging and difficult as the details within the helix clarify.

    (9) The firms had fair warning. Despite the revelations of the NYT, and the yearlong investigation, the firms still had no coordinated response when it came to responding to questions over the billing. DoJ and the firms chose to ignore the law; then not need the lessons of the first pummeling in December. This lack of adjustment shows they are stupid, and unwilling to freely change their ways.

    (10) DoJ hopes to use the same failed arguments to defend a single helix. Rather than make the case in the initial review, DoJ holds out hope that someone might later embrace the same failed argument. Now that we know the activity is illegal, there’s no basis to classify the conduct; there is no basis to deny granting access: DoJ OPR does not need to have any clearance to review illegal activity. The illegal activity was never lawfully classified, nor was DOJ OPR lawfully denied clearance to that illegally-classified activity.

    (11) It is not the sole responsibility of the states to investigate federal government misconduct. Proven illegal conduct compels Congressional action. It remains to be seen how Specter, if he was serious about his claim that the surveillance did violate FISA, uses the Diggs ruling to assert his power as Senate Judiciary Chairman to find facts and order a formal investigation of this now-adjudicated-illegal activity. There is no legal foundation for any Member of Congress, especially the Chairmen to refuse to investigate what is now known and proven to the court to be illegal. Members of Congress have a duty to enforce the law; they have duty to find facts. To do nothing, despite this proven illegal conduct would amount to malfeasance. Yet, despite long knowing since December 2006 that the activity was not lawful, Congress did defending the Constitution. They were defending, with inaction and excuses, what was not lawful. It remains to be seen whether Members of Congress are serious about appointing a special prosecutor to what has been proven t be illegal; or whether an empaneled grand jury compels the prosecutor to provide evidence of this illegal surveillance program. The attorneys working inside DoJ have suspected there was illegal activity, but have actively pretended it was something else.


    DoJ hopes to individually case their full spectrum of illegal activity as separate programs; however, the evidence before us (as it relates to (1) the surveillance activity and (2) billing activity) is that the same players and arguments are in full swing. There is no difference between the violations; the only difference is how successfully DoJ is in casting what is part of the same hydra as a different species.

    By selectively framing the same illegal activity from new perspectives, DoJ is simply inviting inconsistent results. It remains to be seen how the Executive uses the manufactured confusion, and understandable differing judicial rulings, as a basis to assert that the Executive knows best, and nobody need bother consulting the courts.

    Given what we know about Verizon and AT&T -- in that they are related by way of the similar people and process – its likely that, as we dig into the details of the illegal AT&T surveillance, the Verizon-linked evidence from the AT&T helix will mount. We will see the same open information, and public-dubious-denials that defeated the surveillance activity similarly apply to the billing violations. It is premature to say that the litigation on the billing issue is over. There is more bad news on the way. The more DoJ believes it can hide the same illegal activity, the more they will be emboldened to threaten others to remain silent.

    Now that the surveillance activity has been struck down as illegal, it’s time to review the illegal classifications, end the witch hunt into the leaks about this illegal activity; and broaden the discovery to find out more about the illegal NSA surveillance. With time, we will discover the needed evidence to conclude the billing program was similarly classified on the basis of dubious claims, and essentially part of the same criminal helix.