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Tuesday, August 29, 2006

NSA: Bush Subpoena

NSA plaintiff counsel knows full well there's evidence floating around. The question is whether DoJ realizes counsel already has the means to demonstrate to the court whether the President has or has not fully complied with the subpoena.

The President is stuck. He has no idea who is providing the information; or who remains in a position to disclose evidence fatally undermining White House assertions before the court. It's still two months until the election. Ooops.

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Subpoena: PDF HTML


Pre 9-11

Counsel has information showing the discussions related to the illegal activity started prior to Sept 2001. They also have information which forms the reasonable basis to link all these firms. If the Government fails to comply with this subpoena, or deny that there is evidence, counsel has information that will show there has been fraud, and an illegal failure to comply with a lawful subpoena.

Counsel also has a reasonable basis to believe that the monitoring, because it was not supervised by the court, was not related to any bonafide national security objective. It remains to be explained what the true basis for target selection, and why the lawfully required NSA minimization procedures were not implemented as required.

It remains unclear what happens if, contrary to assumptions, the Bush-related direction to the NSA was linked with the transition team, before the 2001 inauguration.

We judge the Qwest attorney has substantially cooperated, and that Qwest has already worked with this firm to establish the details of the NSA-related communications. There is more data counsel has not provided, and DoJ Staff realize this and will be reluctant to immediately deny or admit anything. The problem for DoJ is that regardless their statements, the denials can be disproved; and anything that they admit can be used against them. In short, their story hasn’t added up; and the more we learn, the more it is obvious nothing is adding up. DoJ has painted itself into a corner.

The one challenge will be in getting information not located in the United States, and in the mind of DoJ, “outside” the subpoena. For example, an order directing Verizon to do or not do something that does not originate from the United States, but a third country like Israel, which is related to Amdocs, could feasibly fall outside this subpoena.

Illegal Administrative Warrants Prior to Sept 2001

Given the NSLs are not constitutional, it is appropriate to publicly discuss the scope of the NSL activity. It is an open question to what extent the non-court-authorized subpoenas, because they were illegal NSL-like requests for data would fall within or outside this request. In theory, the banking and funds transfer subpoenas would also fall within this definition.

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Presidential Orders

The Executive Orders related to this relationship are included in the NSA budgeting documents. These explicitly state that the surveillance, and all other activity, when it is illegal may not be classified. Precedent also forbids claiming executive privilege when there is an issue of fraud, as is the case here.

The President’s memoranda related to the orders are also linked to the JROC, and the NSA decision not to use the available, lawful mechanisms to execute this and other activities.

National Security Council

The Vice President, through the National Security Counsel, has specifically been delegated by the President the authority to make specific decisions. The NSC connection to the orders is well established, and public. What is not known are the specific contents of those messages. A common theme in the public assertions of "authorization," without invoking legality or illegality. The distinction is important, and is merely an assertion, not something the Qwest CEO found credible.


The issue will be for the government to explain why 19 Members of Congress have revealed/confirmed the details of this billing activity. Once the Executive discloses this material to Congress, through whatever, form it is not privileged. Congress is not a branch of the White House, but a third entity, destroying any bonafide claim of Executive Privilege.

There were intermediaries. Valuable information of interest to the court may not be captured by narrowly requesting data only related to direct transmissions between AT&T and the government. Rather, the other communications do include direct transmission of status reports, progress, and analysis from the intermediaries and media analysis companies. These firms, although indirectly related to AT&T, would not necessarily be captured within this subpoena.

The activities related to the intermediaries which provide the billing and subpoena support to the primary telecoms. AT&T lobbyists have already conformed there are ongoing messages, memoranda, and other communication that otherwise memorializes the relationship which the President has not denied. It remains to be understood how the intercepted information was analyzed then used for public consumption. The GSA contracts with the AT&T public relations firm formalize this process.

Of interest will be to review the operating procedures governing the billing-subpoena intermediaries: How were the instructions reviewed by counsel; what was the policy when issues of FISA were raised; when the non-involvement of FISA court was known, how were these resolved. There would have to be a summary reporting system to show that the contractor did receive the request; that the request was met within a specified time; and that the award fee related to the performance across various program objectives was or was not meeting requirements. This performance would have been reported, and part of the briefing provided to the NSA SES reviewing the activity prior to final fee award to AT&T, Verizon, or the intermediaries providing the billing-subpoena responses. The paying stations will, through the GSA contract numbers, be able to provide information on the award fees held, retained, or awarded. You can see the Congressional language with openly discusses this issue, thereby rejecting any reasonable grounds for the Executive to claim privilege on these award fees.

Telecom E-mails

The AT&T and Verizon have internal e-mail systems. Some of the publicly available Verizon e-mail has been withdrawn because of its damaging implications. The AT&T and Verizon e-mail systems include specific contractors, vendors, and other names which Verizon and the Government have already disclosed to third parties, thereby destroying any bonafide claim of executive privilege.

Verizon’s e-mail is interesting. It has known links with the intermediaries, and it is well known that Verizon counsel was well aware of the statutes and requirements. Verizon’s General Counsel is Mr. Barr who was a previous US Attorney, and publicly appeared with the AT&T-related entity providing the media messaging service to the government.

It is of interesting that the Verizon Counsel, when asked, did not rule out the possibility that the NSA had access to not only the information, but the Verizon facility. Of interest will be to learn the lessons of the Fitzgerald Grand jury as it relates to the adequacy of telephone notes. If these calls are logged, then the funds for reimbursement can be traced. However, if there are gaps, then the auditors can look at the time sheets, and contrast the original work reported, with the evidence provided:

  • Did the contractor submit information and work descriptions that are inconsistent with the documentation

  • Has the contractor reported in writing various work that is no longer supported by working notes, or papers substantially supporting that contention

  • Has the contractor requested reimbursement for work that was originally represented to be linked to telephone communications, and there should be notes related to those conversations; but there is no nothing to provide, and no summaries or e-mail follow-ups related to those discussions.

    You’ll want to notice the gaps in the communications. An easy approach is to notice, at a macro-level the normal communication levels; look for spikes; and then when the communication/e-mail spikes look for appropriate spikes in internal e-mail, and documentation. It is likely that the two communication levels are not consistent, and this is evidence suggesting Verizon, the NSA procurement office, and AT&T have destroyed evidence they should have known should have been retained.

    You’ll want to check the travel reimbursements through the paying stations. These relate to follow-up visits, and other program reviews. This will give you an idea of the preparation, and pre-meeting planning required. Again, if there is no pre-meeting activity, and no technical discussions related to interface issues, you know that you’re not being provided the summary notes from the engineers that are involved with the technical meetings. This would likely related to Lockheed Martin and Raytheon, involved in the ground station interface and other technical meetings for that ground station support in the Continental United States.

    It is well known in the law enforcement, intelligence, JTTF, and CALEA communities that there is an ongoing information transfer. The issue will be to what extent you want to review these follow-up actions and other direction provided to law enforcement; and how the local prosecutors were using this illegally gathered information. JTTF will have some explaining to do. Although they may not have in all cases electronically intercepted information, it is not unknown for government officials and law enforcement to manually review information. In their view, any call made on a public phone is considered reviewable, so long as one person – even them – has been ‘authorized” to access the information. The issue will be is how this illegally gathered information was subsequently presented to the court as an “anonymous tip” which the officer have illegally self-certified as being from a bonafide source, knowing full well the accuracy was assured because of illegal interception and monitoring.

    GSA Contracts

    The GSA contact reference includes the contract vehicles to support the data transfers between the contractor-intermediary, to other entities for analysis, and then final analysis before presentation to the public in the form of messages. The contract vehicles specifically request the fund cites, billing information, and other contract vehicles that physically route the funds from the US government, through the paying stations, to the final entity that supports NSA. Similar contracts have already been provided to the public through FOIAs.

    When a contractor works with GSA, they are to comply with certain closeout requirements. These terms are part of the contract and are also available in other publicly available contracts related to NSA, AT&T, Verizon, and GSA. These contracts are positively linked with the intermediaries, NARUS, the billing companies, and CALEA.

    The problem with the subpoena is that the request for information assumes that there were specific requests for information. Rather, the relationship was much looser, as evidenced by the Verizon Counsel comments, whereby the NSA was apparently granted wide access. Either way, it will be important to compare the terms of the contracts – as they relate to data transfer, and subpoena requirements – as to what was actually occurring; then contrasting this with the specific requirements in FISA. None of them match.

    Misleading Program Description

    It is incorrect to narrowly define the activity under a specific program. Rather, there are many efforts, not narrowly trailed to a specific name. Recall, the officially designated name is not the same as the actual surveillance starting before Sept 2001; and the subsequent names are not consistent with the advertised names available on the Securities and Exchange Commission website, as they relate to Telcordia, SAIC, or Verizon.

    The networks in question are not isolated to a specific contract or acquisition process. Rather, the appropriate view is to consider the Intel Link system as the channel to both display content for DoJ, NSA, and others; and at the same time quickly disseminate information and policies. It is clear the programs, as executed, did not necessarily adhere to these modified requirements, much less the legal FISA requirements.

    The physical infrastructure is different than the less formal contractual agreements between the telecoms and the intermediaries. One type of contract relates to a facility; the second type relates to data analysis. Although the same contract may have been used, it is not correct to assume that a single program name covered both phases of the effort. The correct approach is to take the wider view, and consider how the NSA was or was not implementing this activity through non-US entities located in Canada, and other locations. The current request for information fails to discuss the Royal Canadian Mounted Police or the Canadian equivalent of the NSA.

    RNC Demonstrations: Domestic Surveillance

    Media organizations connected to the domestic messaging is well established. The AT&T-related entity has on contract many billions of dollars in media-related air time. It remains to be understood how messages which the media knew were false, were blocked; and to what extent the contractors provided this information to the government, which subsequently used this refusal as a basis to retaliate against the non-cooperating firm or entity.

    It is likely that the RNC demonstrations are associated with the domestic surveillance. Be mindful of the publicly released RNC-staff cell phone numbers which can be subpoenaed, and help understand the communications, planning, and other coordination prior to the illegal detentions. It will be interesting to notice the spike in pre-RNC demonstrations communication, and how the NSA was used to monitor the war demonstrations. Then the question will be: Do you want to trace the money associated with those firms, and follow it back to Azerbaijan, Uzbekistan, and Sibel Edmonds communication intercepts? Yes, it’s linked to drug shipments: Hello battalion 316 in Honduras, and Mr. Negroponte, the mastermind behind the UAE port deal.

    Retaliation Against Non-Cooperative

    When reviewing the claims against Qwest, it will be important to review the Verizon-SAIC related entities. Personnel on Verizon e-mail have been linked with specific entities which have litigated against Qwest. It will be important to review the timing of this litigation; and what support NSA and DoJ may have provided to these third parties. Here are the details on the dispute the entity had with Qwest: Ref

    You’ll want to look for a name: Randal S. Milch. He was the General Counsel at the entity, and is also linked with Verizon, and is affirmatively linked on Verizon e-mail available to third parties. Milch gave a 2005 speech before the NY Bar, where has was due to register as of July 2006. You’ll want to compare the tone and tenor with Milch’s statements with those 4 Nov 1999 comments to NYPSC General Counsel Lawrence G. Malone, in re KMPG audit results and reporting.

    Quantico, VA facilities are documented in GSA contracts and the IG reports. This is also where the Marine Intelligence units are located, and also MITRE OSIS system, part of the classified NSA communication system. MITRE is linked with many government contractors through its SETA contracts, and is a well known NSA technical advisor.