October 15, 2007
The latest revelations in the Bush Administration's long-unfolding, ever-growing illegal wiretapping scandal carry with them a multiple string. For not only do they bear upon Bush's vast system of lawless espionage aimed at the American people, but they also underscore the perversion of the Justice Department into an armed enforcer of partisan thuggery and confirm that that the unprecedented authoritarian powers that Bush has seized have nothing to do with their ostensible justification, the 9/11 attacks, but were part of a pre-planned evisceration of the constitutional republic that began in the first days of his ill-gotten presidency.
What's more, the revelations give strong indications that nothing about the domestic spying program will change under a Democratic administration – because the heart of the scheme was in fact created under Bush's predecessor, who bears the same last name as Bush's likely successor.
The new data has emerged from the case of Joseph Nacchio, the former CEO of the telecommunications giant, Qwest. Nacchio was prosecuted by the Justice Department and convicted of insider trading -- after he turned down a request from the National Security Agency to give the Bush Administration unrestricted access to the telephone records of Qwest customers without a warrant. According to recently unsealed filings in Nacchio's appeal of the conviction, the Bush Administration first pressured him to sign up with the warrantless surveillance program in February 2001 -- seven months before the 9/11 attacks that "changed everything" and ushered in a new era of acquiescence to draconian measures.
After this refusal, Nacchio -- who at the time was chairman of the government's National Security Telecommunications Advisory Committee, holding top security clearances to work on secret projects -- was cut out of lucrative deals to privatize the NSA's non-secret technology, as the NYT reports. When these blows against Qwest -- which was already suffering from falling share prices -- failed to bring Nacchio to heel, the Justice Department then launched its insider trading case against him, pointing to stock sales he had made back in 2001 before a poor financial report.
Nacchio's defense was that the stock sale was a portfolio diversification that had nothing to do with the company's performance -- precisely because he believed government assurances at the time that Qwest would indeed be part of the NSA privatization. Thus he was anticipating a rise in share prices that year, not a fall, and so his sale was not a dump job before bad financial news reached the public. (The kind of thing that once got George W. Bush into hot water -- until he was cleared by his father's Securities and Exchange Commission, whose chief was a longtime Bush family retainer and whose general counsel became Dubya's own lawyer two years later.)
However, at his trial Nacchio was forbidden from bringing up these dealings with the NSA in his defense by the judge, Edward Nottingham -- a longtime political partisan appointed to the bench by Bush's father, as Scott Horton notes. (Nottingham, by the way, has been under investigation by the FBI for possible misuse of his federal computer, after rancorous divorce proceedings revealed that he had spent thousands of dollars at a Denver strip club and subscribed to a porn-laden adult dating service that he perused in his judicial chambers. When questioned about the $3,000 he laid out during a single trip to the strip joint, the judge testified that he was too drunk to remember just how he spent the money.)
Scott Horton has a good précis of the Nacchio case thus far and some of its deeper implications:
Let’s put this in sharper focus. Nacchio discovered that the NSA was engaged in a project to gather warrantless surveillance data on millions of Americans. He took advice of counsel. His lawyers told him, correctly, that this was illegal. They probably also warned him that if Qwest participated in the program, it would be committing a felony. So Nacchio said, no, sorry, I can’t work with you on this. But I can help if you want to change the law. And the reaction of the NSA? It was, apparently, to cut Qwest out of a series of contract awards by way of retaliation. (If that charge sticks, it would probably be yet another felony.) And the second reaction? To try to build a criminal case against Nacchio as a means of retaliation against him. (And if that charge sticks, it would probably be yet a third felony–on the part of the Government officials who did it). We are seeing the Government engaging in a sweeping pattern of criminal dealings, and ultimately, one of the biggest crimes of all, abusing the criminal justice process to strike out at an individual who refused to play their crooked game. Oh, and by the way: who was heading the NSA when all of this transpired? Michael Hayden, the man who now runs the CIA, and is busily dismantling the CIA Inspector General’s office because it has apparently raised questions about potentially criminal conduct on his watch there, too.
See how neatly it all ties together. Hayden was the NSA honcho who pushed the illegal surveillance on Qwest and other telecoms. (Who, unlike Nacchio, willingly did their "patriotic" duty to break the law -- and for their service gladly pocketed those fat privatization contracts that Qwest was denied.) Now Hayden is even more powerful, and obviously willing to kill the career of anyone who threatens to air the Administration's dirty laundry.
Meanwhile, his boss -- Mike McConnell, the Director of National Intelligence, overseeing 16 organs in the security apparat -- was hip-deep in NSA contracts, including the privatization deals, in his pre-DNI role as senior vice-president at Booz Allen Hamilton, one of the many "private security firms" who have made billions in the golden revolving door between hugger-mugger government service and "top secret" private pork.
And it is McConnell who has been spearheading the Administration's effort to retroactively "immunize" the telecom giants from prosecution for their well-paid role in the lawless surveillance scheme. Leading Democrats have already signed up to this astonishing barbarism, which, as Glenn Greenwald notes in a blistering analysis, is yet another indication that the rule of law is a dead letter for the mandarins of the American Establishment.
But aside from the sheer chutzpah of the move, there is really nothing surprising about it. Not only are Democrats deeply in thrall to telecom money and thus eager to please their paymasters; they've already effectively immunized George W. Bush and his minions for their perpetration of the illegal wiretapping – a crime which the Administration has openly, even proudly embraced. The ex post facto exoneration of the telecoms is part of a larger renewal of one of the most shameless pieces of legislative hackery passed by the new Congress (and that's saying something): the retroactive authorization of Bush's warrantless surveillance program. To be sure, the upcoming renewal of these tyrannical powers will be hedged in with a few toothless "safeguards" – but is there anyone (outside the Washington Post editorial board) who is stupid enough to believe that the Bush Administration will feel bound by any restrictions that Congress tries to place on the arbitrary will of the "Unitary Executive"?
Nor is there much hope for any real change should a Democrat win the White House in 2008 – especially not the current front-runner, whose nomination seems all-but-certain now. For there was one nugget in the Nacchio papers that has not received much attention. As Wired magazine reports, his appeal quoted from a lawsuit filed against the telecom Verizon for turning over its call records to the NSA. The suit alleged:
…that AT&T began building a spying facility for the NSA just days after President Bush was inaugurated….The project was described in the ATT sales division documents as calling for the construction of a facility to store and retain data gathered by the NSA from its domestic and foreign intelligence operations but was to be in actuality a duplicate ATT Network Operations Center for the use and possession of the NSA that would give the NSA direct, unlimited, unrestricted and unfettered access to all call information and internet and digital traffic on ATT's long distance network…
The NSA program was initially conceived at least one year prior to 2001 but had been called off; it was reinstated within 11 days of the entry into office of defendant George W. Bush.
Read that last paragraph again: the NSA program to gain "direct, unlimited, unrestricted and unfettered access to all call information and internet and digital traffic" was conceived and pushed "at least one year prior to 2001" – by the Clinton Administration. If this is what the Clintons wanted to do in 1999 or 2000, why wouldn't they want to do it in 2009 – especially when it's already been done for them, by Bush, and approved by Congress?
The illegal spying scandal broke into the open almost two years ago. It was clear then that it was a make-or-break issue, a last chance for the American republic. As I wrote at the time: "Now the choice for the American Establishment is clear, and inescapable: do you hold for the Republic, or for autocracy?"
Two years later, the answer is equally clear. As with every other criminal racket perpetrated by the Bush Administration – from the monstrous war of aggression in Iraq to the adoption of torture as an official instrument of national policy to the practice of state murder in "targeted assassinations" to the lawless capture and indefinite detention of American citizens without charge and on and on – the Establishment has held for autocracy. They would rather be the well-paid slaves of a two-bit tyrant than honest citizens of a genuine republic. As long as they can keep their choice spot at the trough, they will gulp down the foulest swill that Bush, or his autocratic successor, can serve.
When I wrote the 2005 piece quoted above, this grim outcome – although very likely – was not yet clear. But I think the conclusion of the piece still stands, albeit with the conditional nature of its first sentence removed.
The next few weeks will show us if there is still some hope of restoring the Republic through the old institutions, or if we will have to follow the course laid out by Bob Dylan some 40 years ago: "Strike another match, go start anew." Who knows? Maybe we can make a better republic next time: one not born of blood, greed and fury -- those all-too-common elements of human organization -- but made from a new compound of mercy, justice, communion and liberty. Still imperfect, of course, still corrupt -- because that's our intractable human nature -- but with our worst instincts restrained by enlightened, ever-evolving law, and the predatory ambitions of the rich and powerful reined by elaborate checks and balances.
Note: Last year, my colleague Rich Kastelein created a website where readers could thank Qwest for refusing to take part in the Bush Administration's illegal surveillance of American citizens. You can find constantly updated news on latest revelations and related matters at the bottom right of this site. Rich also created another website at the time, This is Wiretap, where you can find extensive background information on the entire affair, including news, analysis and video.