DNI can give telecoms a get out of jail free card

May 17, 2006

I don’t mean to belabor the point, but it just doesn’t make sense that telecommunications companies are denying having cooperated with the NSA on its phone-records database. Think Progress uncovered a presidential memorandum, however, that may shed some light on the subject.

Ordinarily, a company that conceals their transactions and activities from the public would violate securities law. But an presidential memorandum signed by the President on May 5 allows the Director of National Intelligence, John Negroponte, to authorize a company to conceal activities related to national security. (See 15 U.S.C. 78m(b)(3)(A))

There is no evidence that this executive order has been used by John Negroponte with respect to the telcos. Of course, if it was used, we wouldn’t know about it.

This would explain a lot. As Salon’s Tim Grieve explained, based on this directive, Negroponte is in a position to “free companies who cooperate with him from the obligation to record — and potentially reveal — the activities in which they’re engaged. And what does that mean? Negroponte now apparently has the power to allow the telephone companies that have been turning over telephone records to the NSA to keep their “transactions” — the payments they’re getting from the NSA — off of their books.”

Does this explain BellSouth’s and Verizon’s denials? It’s too soon to say for sure, but it’s an interesting presidential directive, isn’t it?

This memo seems to keep the SEC off the telephone companys’ backs. Does it keep the FCC off their backs for giving up customer information to the government without a warrant?

It is all a little scary, though.

  • What interesting timing as well…

    Maybe. But if that’s true, why didn’t they lie last week? Why wait 4-5 days?

  • You can’t simultaneously worship the open market while denying it what it feeds on: information. The notion that Rethugs favor open markets is a lie, of course; they favor whatever makes them and their richer and more powerful. In many instances, that may be an “open” market (which is really open mainly to the rich, or the rich may profit on information which is not “open” to other market participants). In other instances, however, that will be a controlled, non-open system. No one will notice, of course, but it still pleases me whenever I can see another untruth about the Rethug “philosophy” being exposed.

  • Maybe. But if that’s true, why didn’t they lie last week? Why wait 4-5 days?

    The speed of bureaucratic communication is inversely proportional to the level of the bureaucrat doing the communicating.

    Seriously, there was probably some “game-planning” going on between the admin, NSA and the telecom CEO/legal depts.

  • Wow. Just think of all the stock market implications of that. That’s got to be unlawful, but who is going to challenge it? If the telcos or Wall Street are smart, they’ll have to denounce it. Right? Right?

    More intertwining of the state and corporations. Cui bono?

  • Hmmmm…. Look at it the other way – maybe insulation from SEC regs can help get the telcos to talk. This memo still doesn’t permit them to perjure themselves in a criminal investigation, does it? I say we completely immunize the telco execs and technicians from prosecution and get them to spill ALL the beans.

  • How would we come to know if the telecoms are indeed lying? Under normal circumstance this would occur when the lawsuit comes to trial. I would bet that this lawsuit will never come to trial, because BushCo. will invoke the “military and states secrets privilege” in order to prevent this from happening. I suspect that the telecoms are making the same bet.

  • C-O-V-E-R–U-P.

    Does anybody have Congressman John Conyers’ telephone number?

  • Everyone should mark June 23 on their calendars. That is the day that U.S. District Judge Vaughn Walker will hold a hearing to determine if he will throw out the EFF’s lawsuit against AT&T based on the states secrets privilege. Wired News has three good articles today on the suit. You can find them here, here and here.

    If you wondering why the telecoms can lie with impunity about turning over their calling databases without fear of exposure, it is likely because judges almost never turn down the government when they ask for dismissal based on this privilege. From the third Wired News article linked to above,

    The state secrets privilege cannot be found in the U.S. Code, the code of federal regulations or the Constitution. Instead, it is a part of common law, the body of laws and precedents created over centuries of legal decisions. When the government believes that a civil suit might reveal secrets injurious to the country, the head of the appropriate government agency must review the matter and submit a signed affidavit attesting to the danger of the lawsuit or documents that might be disclosed.

    Judges almost invariably agree to such requests, according to William Weaver, a law professor and senior adviser to the National Security Whistleblowers Coalition.

    “It’s like one of magic rings from The Lord of the Rings,” Weaver said. “You slip it on and you are invisible — you are now secret.

    “Ostensibly judges could have flexibility, but they have not done that,” Weaver said. “There has never been an unsuccessful invocation of the state secrets privilege when national security is involved. The (EFF) suit is over.”

    Weaver points to a 1978 decision by a federal court to dismiss a lawsuit against the NSA by Vietnam War protesters as a precedent for what is likely to happen in the lawsuit against AT&T.

    Judges almost always accept, at face value, assertions by the executive branch about the need for secrecy, said Stephen Aftergood, who directs the Federation of American Scientists’ Project on Government Secrecy.

    “It reflects a judicial lack of self-confidence in the face of national security claims made by the executive branch,” Aftergood said. “You also see this deference in Freedom of Information Act cases.”

    Does anyone think that BushCo. won’t invoke the privilege to dismiss the most recently file suits.?

  • So does “off the books” mean no taxes on that income? Sweet! Where can I get in on that deal.

  • so, from #13, “Ostensibly judges could have flexibility, ..” but they “lack .. self-confidence in the face of national security claims made by the executive branch, ..”. What is this? Are the judges affraid of something?

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