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The Wire: Snipped or Broadened? The January 17 Episode



A few things went down on January 17. You know S.A.’s homeboy “A.G.” — the one who leads the world’s largest law office, the U.S. Department of Justice? The one torn between enforcing federal laws and allegiance to his White-House compadres? He sent a puzzling letter to the Senate Judiciary Committee that said the program the president secretly OK’d in 2001 would again be “subject to the approval of the Foreign Intelligence Surveillance Court.”

Don’t assume that means wiretapping after obtaining a court order, the way Congress mandated back in 1978 after baffling snoop abuses (on John Lennon? Martin Luther King Jr.?) by J. Edgar Hoover’s FBI and Nixon’s White House. Because Attorney General Alberto Gonzales also wrote that under Bush, the domestic-surveillance program was and forever will be “All Good” (hence A.G.’s moniker). In his interpretation, everything’s legal.

The Washington Post may have read the letter as the administration backing away from its “expansive interpretation of executive power,” but critics of Bush’s wiretapping process, including one of the letter’s addressees, Democratic Senator Jay Rockefeller, are snorting through their noses like incredulous Frenchmen. Jay Rocky told NPR that the president’s promised statutory compliance was either a lie or an unbelievable plot twist on par with a leather-clad, water-skiing Fonzie jumping over a shark on Happy Days.

There’s no sea change to be read into the attorney general’s announcement, so writes Century Foundation’s public-policy wonk Patrick Radden Keefe in a recent Slate article. The stale insistence that warrantless wiretapping is within the prez’s inherent constitutional powers means Bush upholds the idea of opting out of court-approved wiretaps — which the FISA statute makes a felony punishable by a $10,000 fine and five years in prison. Bush may even be maneuvering to get broad-based warrants by regions instead of the cute personalized ones with your name on it — another FISA violation.

Radden Keefe said the Post may call it a Bush Retreat, but it sounds more like a Trojan Horse.

In a related plot thread that same day, the civil-liberties vigilantes at the American Civil Liberties Union announced they were going to boil the ocean. On top of suing the government and its alleged corporate accessories in the unconstitutional handover of phone and internet-traffic data, they were backing a small shareholder challenge against our hometown giant, American Telephone & Telegraph. `No word yet on whether the ACLU itself holds stock in AT&T after the BellSouth merger — see the Current’s “Will ACLU shake its money maker?” published, fortuitously, on January 17. ACLU spokeswoman Emily Whitfield insists on communication asymmetry, as our intern puts it. She returns the Current’s calls with vague emails about owning stock in the devoured BellSouth. The whales at AT&T could not be reached for comment.`

Back to the challenge: AT&T shareholders have lobbied the company and the Securities and Exchange Commission to get a transparency resolution into the glossy folders at AT&T’s upcoming April 2007 stockholder meeting. It calls for a disclosure of how much the company has spent in this alleged NSA collusion, how to notify costumers whose info has been shared, and the technical, legal, and ethical policies related to violating customer-privacy laws. (As always, the “alleged” is implied, as in “AT&T. Your world delivered to the NSA. Allegedly.”) The SEC has yet to rule on the resolution.

“We think we have a 50-50 chance,” said Patricia Jurewicz of the As You Sow Foundation, an investor-advocacy group for corporate responsibility leading this challenge (and one against Verizon, also a suspected colluder). As You Sow has had success mounting social-responsibility mutinies within Gap Inc. (labor reforms) and Home Depot (old-growth lumber reforms). But to unearth anything related to the NSA means handling that thorny state-secrets privilege*, which the attache cases over at AT&T insist apply to them.

“AT&T may not publicly disclose any responsive information concerning the claimed Programs,” the legal team wrote to the SEC, citing John Negroponte’s declaration when he was the director of National Intelligence that said “any information tending to confirm or deny … an alleged relationship between the NSA and AT&T” was protected under the statutory privilege.

Still, Jurewicz believes strong, steady internal pressure, coupled with the 20 class-action lawsuits totalling $200 million leveled at AT&T/BellSouth and Verizon, and possible investigations into state privacy-law violations, pushed by the ACLU, will one day make telecoms embrace data disclosure and civil liberties.

And in our final storyline: the English are already framing security and privacy concerns as good business policy. On January 17, London’s F&C Asset Management company released its report “Managing Access, Security & Privacy in the Global Digital Economy,” in which F&C warns that investors will want proof companies are avoiding legal penalities and PR disasters, and cites AT&T’s `alleged` involvement with U.S. intelligence authorities as the kind of blood investors don’t want in the water.


*The state-secrets privilege continues to frustrate the curious. Because the government refuses to share details about any eavesdroppees, “… There is no allegation that a plaintiff has actually been subject to the particular surveillance at issue,” opined a panel judge on January 31 at the Sixth Circuit Court of Appeals in Cincinnati, addressing a Detroit court’s ruling in ACLU vs. NSA that called warrantless wiretapping unconstitutional. The government’s legal team went on to declare the whole trial moot because of the Justice Department’s January 17 announcement.           

“Those orders have eliminated the central premise for plaintiff’s legal challenges in this case,” a defense lawyer said. James Bamford, one of the plaintiffs, wrote in a New York Times op-ed that the moot defense was like a bank robber saying he shouldn’t be prosecuted now that he’s given up stealing.

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