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Wednesday, August 09, 2006

Verizon Internal E-mail Reveals Inconsistent Statements

Verizon's e-mail from the General Counsel's office has been affirmatively linked with fatal "failures to deny"-messages.

This is probative in a war crimes trial against Verizon General counsel and the ongoing civil litigation against the telecoms.

* * *

Verizon’s internal e-mail system reveals information contrary to their public denials. Maine’s Public Utility Commission [MPUC] is subject to the rules of evidence. Federal Courts have clearly established that once states make findings of facts, the Federal Courts may not overrule.

Verizon’s problem is that in hiring a former Asst. US Attorney General, attached with that hiring comes the expectation the attorney have with them certain experience, ability, and knowledge of sensitive matters. It is reasonable to expect of attorneys that when they speak, make public statements, or reduce to writing their opinions, the attorney comments are related to the attorney’s state of mind, and their knowledge. These are requirements under the state model rules of professional conduct.

Verizon counsel when first approached, failed to deny the essential allegations. The rules of evidence permit these writings to be introduced, and Verizon has provided no explanation nor defense for these admissible out of court statements.

Attached with that writing is the revelation of Verizon’s internal e-mail system, which affirmatively links by name specific Verizon documents and contracts with, inter alia:

  • Amdocs
  • IntelliStrategies
  • Verizon Counsel
  • Verizon employees
  • Verizon contractors and vendors

    The problem for Verizon is that this isn’t simply a random pattern of list of names. Rather, the other slice of the pie is the CALEA system and ELUS vendors. These are the contractors which Verizon knows, or should know, have been hired to do exactly what Verizon says are not issues related to “these or those” business: Handling the paperwork related to the subpoenas. The problem was that the subpoenas and warrants were not lawful – they did not exist and were not lawfully secured, as required.

    However, outsourcing a legal function does not mean outsourcing the enforcement of the law or the Constitution. When you delegate, you must ensure that delegation is checked, audited, and complies with your legal authority. Regardless who did or didn’t adequately ensure Verizon subcontractors did or did not comply, Verizon has the duty to ensure its customer’s data is protected.

    At the same time, the other slice of the pie is the financial arrangement between NARUS, and the various billing companies. Again, going through the CALEA system, you’ll quickly see that the Verizon General Counsel and the Department of Justice sit on both sides of the argument.

    His name is Drew C. Arena: He used to work with the Department of Justice, and is now in the Compliance area for Verizon. The problem is that Verizon, Drew, and DoJ have been affirmatively linked with the NARUS STA 6400 and also the open source information in the Klein affidavit: The Telestrategies conference.

    At the same time, former AT&T counsel Keisler now sits in the Department of Justice.

    The revolving door of justice hinges on the Constitution, not on personal relationships, or the ability to email disjointed, out-of-court statements.

    Although confirmed to the Court, Bybee is under a cloud. Judicial officers must forever assent to the Judicial Cannons. There is no statute of limitations on failing to prevent war crimes; nor in failing to remove oneself from a conspiracy to violate a civil right to investigate evidence of war crimes.

    Keisler should take note that the Ludwigsburg convictions numbered over 100,000. Despite being nominated to the judicial bench -- even if appointed -- you may forever sit under a cloud of doubt. Any nation may prosecute any war criminal -- those who are in a policy making position and otherwise refuse to remove themselves from what is not lawful.

    * * *

    Legal counsel have already issued – upon penalty of perjury – affidavits discussing the open solicitation by NSA of the telephone companies; and stated that other firms were cooperating.

    It is not in dispute that there are many firms involved. The issue is whether the firms, their employees, vendors, and subcontractors will or will not cooperate in gathering facts and making conclusions of law.

    State rules in Maine do not give discretion to any vendor appearing before the Maine Commission whether they will or will not cooperate. Rather, the burden is on the vendor to demonstrate that they are in compliance with the law.

    To date, Verizon has not been reasonable in its responses; nor has it met its burden. Rather, it relies on a dubious assertion of privilege – to which it is not entitled – and asks that we might believe Verizon personnel might be prosecuted for disclosing classified information.

    It is true that it is illegal to reveal classified information; just as it is illegal to classify evidence of illegal activity. It is also illegal to violate the law; and hide evidence of illegal activity.

    Illegal activity may not be lawfully protected by dubious, frivolous claims of classification, secrecy, or privilege. Speaking of Executive Orders and Supremacy, ORCON prohibits hiding evidence of crimes, even by those supremely in violation of executive orders.

    Verizon has a problem: Both the state and the federal orders and laws prohibit hiding evidence of illegal activity. There is also a federal statute that prohibits concealing evidence from a grand jury or other official proceeding. It doesn’t matter that the President may or may not wish to have a matter reviewed; or what speculative reason what proffered to justify violating the law. The laws apply, whether they are the laws of war or the laws of peace.

    That issue of what will or will not happen have already been decided: We are reviewing the evidence; and we can make adverse judgments:

  • The President, Attorney General, and NSA officials working in conjunction with the telecom billing companies have substantially violated clearly established rights, and unlawfully concealed evidence of illegal activity;

  • Despite having a duty to report illegal NSA activity to the Congress, the President did not report that information, and Congress failed to enforce the law, both are violations of their 5 USC 3331 oath of office; and both failures are in contravention with their clearly established ministerial duties: The duty to enforce the law and protect the Constitution; and

  • By-name members of the legal profession have failed to report these substantial violations of the law, subjecting them to state-level review for sanction and possible disbarment and prosecution for conspiracy of, and failure to stop, war crimes. One possible court-directed remedy on an indicted war criminal could be the death penalty.

    It is one thing to induce silence over criminal activity; quite another to be put to death for engaging in and not stopping those crimes.

    * * *

    In 2003 Verizon legal counsel can be shown to have been aware, or they should have been aware of the Telecommunications Act. This act promulgated specific ministerial duties and requirements on the government, contractors, and government agents to follow.

    The Verizon e-mail system has been lawfully accessed and copies of the messages confirming this fact are available. The grand jury has access to the information; and has a reasonable basis to ask more questions.

    Out of court statements by the Verizon legal office affirmatively establish the public identify of Verizon legal counsel and staff; and link with that identification public commentary on the statutes related to issues Verizon would otherwise have us believe cannot be discussed.

    Central to the analysis is the question of whether Verizon has or has not met its burden. Before the MPUC, Verizon as a corporation – which it knows – has the burden of proof. Counsel for Verizon are licensed to practice, or should know, Maine State Law.

    * * *

    It’s time for the American legal community and American law enforcement to accept where you find yourselves:

  • A. You’re on the wrong side of the law; and

  • B. There is open source information linking your entire “we can’t talk about this”-topic to the very things that you would like to hide.

    You cannot hide what is in plain view; nor can you compel anyone to not ask questions about illegal violations of the law. Rather, that is obstruction of justice, and evidence of an effort to not only conceal information, but engage in a conspiracy to violate rights.

    * * *

    It is beyond dispute, and can easily be shown that there is a central thread of deception that is directly linked to the Department of Justice, runs through the vendors, and is affirmatively linked with FISA violations. Every passing minute strengthens the lines of evidence, revealing more desperate efforts to pretend otherwise.

    The problem the Department of Justice has: You are unable to determine who inside your organization is leaking these tips to the outside; nor do you have any comprehension of how deeply your organization has been penetrated.

    Let’s review:

  • Each of you are an attorney in the US justice system, and have been trained;

  • You are all licensed – or should be licensed – to practice law in your various fields, jurisdictions, and practice areas;

  • You are also required to comply with specific educational and professional standards.

    Your problem is that you have believed: If you are working with others who have the same goal, that they will not question; and if they are questioned, they will be discredited. Your problem is that people who are within your organization and you highly respected and trust, are the ones that continue to provide the information and leads.

    Your duty to the DOJ OPR is to report peer misconduct and violations of the law. It is already well established that the DoJ Attorney General has illegally lied to Congress; and that his Assistant Attorney General knows, or should know, that invoking state secrets is a dubious and frivolous proposition on matters related to illegal activity.

    The nexus tilts away from the government-vendor direction:

  • Congress refuses to review the matters;

  • ORCON prohibits classification of illegal activity;

  • The Verizon e-mail system has been compromised;

  • JTTF has been penetrated, and is providing leads about the illegal activity;

  • DoD combat forces are nowhere to be seen, and you have no lawful power to compel public assent to your abuses;

  • Your attorneys have misstated the law, asserted that violations of the law are not a problem; and hoped to have the public believe that your violations are permissible.

    You are wrong. You have no lawful defense. Nor do you have actual physical material in place to physically continue your defiance of the Constitution. Moreover, you are outnumbered.

    * * *

    This is what is known:

  • Your out of court, inconsistent statements are admissible;

  • Subsequent denials are not credible;

  • Your initial refusal to deny information is linked to people who well know the compliance requirements, and are highly trained and aware of the Criminal Statutes;

  • Your legal experts have changed position – made material, inconsistent statements -- on documents which are not protected by privilege;

  • Your attorneys have issued memoranda and notes, not to any court, but in letters to non-court officials – your writings are not protected by the US Code; and may be lawfully introduced for cross examination;

  • Refusing to cooperate with a state-level entity is a basis for the State Commission to make adverse findings;

  • It is well established that when an entity does not cooperate on something that is illegal, and not protected, that adverse inferences can be made;

  • Once the states make findings of fact, no Federal Court may lawfully protect you form the law; and

  • Presidential pardons are meaningless on matters of war crimes – any nation may prosecute any war criminal. Failing to punish war criminals sends the illegal message that war crimes will be tolerated. This is incorrect and contrary to public policy.

    * * *

    It is reasonable to make the following adverse inferences:

  • 1. DoJ Staff and private vendors are actively involved in an ongoing conspiracy to violate rights;

  • 2. The elements required to prove the conspiracy is already available without relying on any classified information;

  • 3. Members of Congress are individually in violation of their 5 USC 3331 oath of office for failing to enforce the law, and exercise their court-recognized duty to ensure that the laws are enforced;

    * * *

    The issue going forward is simple: Do you require the court to order you to remove yourself from this conspiracy; or do you require foreign intervention to compel you to assent to the rule of law.

    That is not a question. The rule of law shall prevail.

    * * *

    DoJ Staff and Verizon has misstated the issue of supremacy. Federal law does not prevent the states from enforcing the state law. Rather, federal and state operations are to comply with the Constitution, Federal, and state law.

    The supremacy clause is not an issue of government supremacy over the states; rather it is the supremacy of law. If you read the full McCullah [* * *] case, which DoJ and Verizon enjoy referencing, you’ll see the full language: Conduct must be consistent with the law; and conduct that is contrary to the law cannot be protected.

    * * *

    Here are some issues. Verizon might have some to believe that they could be prosecuted for leaking classified information. This may be true; it is untrue that you can be prosecuted for commenting on illegal activity. Illegal activity may not be classified under any executive order, rule, statute, procedure, or policy.

    Federal case law also permits the states to make findings of fact. When the state level cases wind their way into Federal Court, the sate-level findings of fact are just that: Findings of fact. The precedent and clearly established law is for the Federal Court to assent to the initial fact finder, unless they were so wholly reckless.

    Yet, the issue is not with the fat finder, but with the fatal admissions by the vendor and government.

    The problem is that based on your initial failures to deny the activity, your argument fails. Rather, under the rules of evidence, once someone fails to deny something that they should deny -- that failure to deny is probative.

    The problem with Verizon and the DOJ assertions on “state secrets” is that state secrets are not applicable to illegal activity which has been proven to occur using non-classified, open, and released information.

    Verizon’s problem is that the person who released this information is highly trained, on the compliance committee, and someone with a great deal of experience with CALEA, classified information, and DoJ policies.

    Because of their standing, awareness of the issues, and their presumed knowledge of the statutes, we tend to believe the following:

  • The failure to deny the activity – when contrasted with subsequent denials – is more telling;

  • The failure to deny, and documented discussion without denial is significant;

  • If the activity were truly lawful, Counsel were in a position to comprehend the importance of not discussing operational details. Yet, rather than deny the activity, counsel initial discussed the permission and latitude of the law; and possibility that this could be done.

    According to Verizon counsels’ written comments, there is within the mindset of the compliance officer the possibility that the NSA access to the Verizon facility is lawful. We do not comment on the credibly of that assertion, but merely offer it as a starting point. Counsel was aware of the statute; took the time to review the documents and Congressional language and explicitly asserted there was room to maneuver.

    This is hardly a denial. Rather, it is the opposite: An assertion that the activity – whether real or not – is possible.

    * * *

    The President and Attorney General have also publicly asserted that the activity was occurring: That phone records were obtained. Again, this is not a denial.

    Thus, the only reasonable conclusion is:

  • The President and Gonzalez statements are to be taken as what they are – Confirmation, failures to deny, and assertion of legality;

  • Verizon counsel’s comments are substantially similar to these assertions, and also fail to deny the conduct;

  • The conduct is not simply possible, but is going on.

    * * *

    The next step is to ask whether the conduct is or is not legal. Again, using open sources, we only need to look at two things:

  • A. What does the statute require: Warrants and permission to access and disclose personal information.

  • B. What was done: Those warrants and lawful permissions were not obtained.

    It doesn’t matter who is saying that the conduct is lawful; or what means was used to access. Nor do we really need to spend much time digging through the denials of the vendors.

    The open records already establish a link between the vendors, illegal activity, and violations of the clearly established rights.

    * * *

    The way forward is to cooperate with the lawful subpoenas. Those who do not cooperate have no legal standing to assert state secrets. These are not issues of national security, but of criminal law.

    You are entitled to talk to an attorney. You may decline to answer questions if that response would tend to incriminate you. However, under state law once you choose to not cooperate, the commission is lawfully empowered to make adverse findings against you.

    You as a telecom provider have the burden of proof when appearing before the State Utility Commission. This burden of proof has always been known; and was a factor and burden you and your peers have not adequately challenged.

    It is too late to require changes to the law; and you may not retroactively claim that the burden is or is not reasonable. Rather, you and your legal peers despite your apparent perception that the laws do or do not apply; have been caught; have failed to challenge the law -- what remains a clearly promulgated burden on you; and you have no legal defense.

    * * *

    ORCON is part of an Executive Order. It is something very special. Information may not be classified when it relates to illegal activity.

    This is a matter of law that the Department of Justice well knows. Further, any attorney general while working in the DoJ has full access to the Intel Link system and DOJ Local Area networks. You also have e-mail, phones, and can review paper copies of the executive orders. Indeed, you can also request contractors and paralegals do studies. Moreover, you have the power to access information from your peers within DoJ, other agencies in the executive branch, or outside. Further, you also have at your disposal access to legal resources, assistance from the inspector Generals, Congress, and even associations that are dedicated to Fraud Prevention. Going further, you also have the power to request assistance from auditors, professionals, and other certified fraud reduction-mitigation-examination personnel.

    There was nothing stopping you.

    Rather, despite all the resources available to you to enforce the law; and timely resolve questions, you chose to ignore the law. Your problem is that you cannot change history. The evidence is locked. The truth surfaces.

    * * *

    It remains to be understood how your refusal to get warrants resulted in innocent people being targeted and deprived of their rights.

    How many people – for whatever reason – were denied due process; and targeted by the US government for surveillance, renditioning, and subsequent violation of rights?

    The issue isn’t that people have or have not been harmed. The issue is that you cannot be trusted to do no harm. Rather, despite your promise to God to protect the Constitution, you crated in your mind an excuse to do something else.

    * * *

    Justice Kennedy spoke about the question of American democracy, raising the prospect that the jury is still out around the globe. Yet, that question isn’t an external phenomenon, nor is it isolated to foreign shores.

    Conduct like this raises substantial questions about the United States governance. It is not a hypothetical that there are, domestically, grave questions whether the American model of governance and democracy as implemented is worth fighting for. In practice, we’ve seen the results: Reckless disregard for prudence, and whole scale abuse of power. Theoretically, the system of checks and balances should do just that: Check and balance power.

    As implemented, the legal experts and those charged with enforcing the law have done the opposite: Abused power, and defied public confidence and trust. You have taken advantage of your special positions. You have chosen to cross the line.

    You cannot do that, and not expect the public to respond. You have abused power, and you have pretended that it is someone else’s fault, problem, or responsibility. Your arguments are frivolous. This is an actionable item under the American Bar Association, and can be sanctioned at the state level.

    These are serious issues. Under the Bar rules when there are serious issues of war crimes, violations of the law, an abuse of power, you have a responsibility to report that misconduct; at a minimum remove yourself from the illegal activity. You have failed.

    You are also outnumbered. Eternity isn’t something that will make the permanent abuses something which will go unchallenged or unchecked.

    We recall the lesson of Nuremburg and Ludwigsburg: Decades after war crimes were committed, the legal professionals were indicted and brought to justice. Your expertise is not so novel and unique that you are above punishment. Rather, a new generation can take your place.

    Yet, if you argue that you cannot be replaced, perhaps you could explain the wisdom of having replaced those from power in the profession of arms. You cannot have it both ways. Either:

  • The decision to remove from power was correct; and it is time to start anew; or

  • The decision to remove from power was incorrect; and we cannot start anew.

    You do not have an option. The issue isn’t whether you do or do not get amnesty, but whether you will or will not agree with this Constitution. You have two choices:

  • 1. Agree with this Constitution; or

  • 2. Agree with a New Constitution.

    Perhaps you see the common element: There is a Constitution. We the People do not have to make rules to your liking; but we may find you a legitimate target warranting specific provisions: New rules of oversight; new obligations to assert ones oath; and new requirements to assent to compliance and audits.

    Your unprofessional conduct has been the catalyst to repair what you have broken, then abused.

    It is your job to solve this problem. You have the burden. It s not our job to fix your credibility problem. Outline for us what you should be compelled to do.

    * * *

    Your problem is that you have not outlined what your problems is, nor have you demonstrated a commitment to do what should be done.

    You have failed to justify confidence to any American that the American model of democracy as you implement it deserves support, much less export.