No Comment — October 14, 2007, 8:05 am

Qwest: Another Political Prosecution?

Last week, a career federal prosecutor friend told me, “Most of us have come to agree that there’s a real problem with political prosecutions on Bush’s watch, and that needs to be addressed, but you need to remind your readers that this is something truly exceptional and that the great mass of cases involve the normal functioning of the law enforcement system, with career professionals who are detached from political considerations.” For the record, I believe that’s true. I’m not sure how widespread the phenomenon of political prosecution is. I believe that it is no longer a question of “whether” such prosecutions have been brought—that’s now very well established. How widespread is this phenomenon? That’s an important question and the answers are unclear.

And this weekend more information has surfaced which would show the practice to be far more common that I first suspected. Last year, a Colorado lawyer told me that I should look at the insider trading litigation surrounding Qwest CEO Joseph P. Nacchio—there was strong evidence in that case of tawdry politics on the prosecution side. Of course, I knew that Nacchio was the only major telecom executive who refused to play ball with the administration on warrantless surveillance. But I did take a look at the case, and I didn’t see the evidence that was suggested.

But as of this morning, I have to admit that I misjudged the situation. It seems that the evidence was lacking because the trial judge suppressed it, not because it didn’t exist. There was a major account in yesterday’s Washington Post, and this morning in the New York Times. These accounts all stack up. Here’s Scott Shane’s summary for the Times:

The phone company Qwest Communications refused a proposal from the National Security Agency that the company’s lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings. The executive, Joseph P. Nacchio, also asserts in the filings that the agency retaliated by depriving Qwest of lucrative outsourcing contracts.

The filings were made as Mr. Nacchio fought charges of insider trading. He was ultimately convicted in April of 19 counts of insider trading and has been sentenced to six years in prison. He remains free while appealing the conviction. Mr. Nacchio said last year that he had refused an N.S.A. request for customers’ call records in late 2001, after the Sept. 11 attacks, as the agency initiated domestic surveillance and data mining programs to monitor Al Qaeda communications.

But the documents unsealed Wednesday in federal court in Denver, first reported in The Rocky Mountain News on Thursday, claim for the first time that pressure on the company to participate in activities it saw as improper came as early as February, nearly seven months before the terrorist attacks. The significance of the claim is hard to assess, because the court documents are heavily redacted and N.S.A. officials will not comment on the agency’s secret surveillance programs. Other government officials have said that the agency’s eavesdropping without warrants began only after Sept. 11, 2001, under an order from President Bush. But the court filings in Mr. Nacchio’s case illustrate what is well known inside the telecommunications industry but little appreciated by the public: that the N.S.A. has for some time worked closely with phone companies, whose networks carry the telephone and Internet traffic the agency seeks out for intercept.

The key news here is that the surveillance program goes back to the arrival of the Bush Administration; it seems that the events of 9/11 were quickly taken as a justification for the Administration’s programs—but they was not a causal relationship. And this means, in turn, that the Administration’s characterization of the program, as a hurried response to the disastrous events of 9/11, is a complete fiction.

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.

Shane also explains why Nacchio’s role was so important and why his decision to hold out caused the Bush Administration such distress:

At the same meeting, N.S.A. officials made an additional proposal, whose exact nature is not made clear in the censored documents. “The court has prohibited Mr. Nacchio from eliciting testimony regarding what also occurred at that meeting,” one of the documents states. Another passage says: “The court has also refused to allow Mr. Nacchio to demonstrate that the agency retaliated for this refusal by denying the Groundbreaker and perhaps other work to Qwest.”

Another document, a transcript of an interview that the F.B.I. conducted with Mr. Payne in 2006, stated that the N.S.A. pressed its request for months afterward. “Nacchio said it was a legal issue and that they could not do something their general counsel told them not to do,” Mr. Payne told the F.B.I. “Nacchio projected that he might do it if they could find a way to do it legally.” Mr. Payne declined to comment.

In support of Mr. Nacchio’s accusations, his lawyers quoted from one of several lawsuits filed against telecommunications companies, accusing them of violating their customers’ privacy. That lawsuit, filed last year against several companies, asserts that seven months before the Sept. 11 attacks, at about the time of Mr. Nacchio’s meeting at the N.S.A., another phone company, AT&T, “began development of a center for monitoring long distance calls and Internet transmissions and other digital information for the exclusive use of the N.S.A.” The lawsuit contends that the center would “give the N.S.A. direct, unlimited, unrestricted and unfettered access” to phone call information and Internet traffic on AT&T’s network.

The claims about the defense are stridently—and very unconvincingly—countered by the lead prosecutor, Cliff Stricklin, who called them simply a “lie.” Were that so, of course, the Government should have let the information in and countered it. The fact that it chose a different path, namely invoking classifications to exclude it, suggests a strong concern that the accusations were truthful. The trial judge, Edward Nottingham, was a politically active Republican appointed to the bench by President Bush 41. The Denver Post profiled him as a judge who was “tough on lawyers.” In the Nacchio case, however, his legendary toughness has been reserved for defense counsel, whom he accused of filing frivolous motions. His rulings have consistently aligned the court with the prosecution, and he has been particularly supportive of Government views on secrecy issues.

In light of the current disclosures, however, the question is exactly what secrets the court and the Government are trying to conceal? Using alleged national security concerns to deprive a criminal defendant of a robust defense undermines confidence in the entire legal process, and gives rise to an appearance of a court and government participating in a vendetta instead of administering justice. Certainly these disclosures suggest improper conduct on the part of the Government: first, that the contract award process was skewered to punish Qwest and its shareholders because of Nacchio’s views—which were, in the view of most U.S. legal professionals, entirely correct. And second, they raise a fair issue whether the prosecution itself was not launched as an act of retaliatory malice. At this point, the number of such politically directed prosecutions is growing, and the Nacchio case may well be just another example. Of course the Nacchio case went to trial before evidence had come to the surface that detailed just how pervasive and entrenched the phenomenon of polticially dictated prosecutions was.

I have no view of whether Nacchio is guilty or innocent of the charges brought. But the way they were brought and their timing now seems very disturbing.

Whose interests are protected when a Republican judge excludes evidence that suggests wrongdoing on the part of a Republican administration? Certainly not the most fundamental interest. That is in justice.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2019

Men at Work

= Subscribers only.
Sign in here.
Subscribe here.

To Serve Is to Rule

= Subscribers only.
Sign in here.
Subscribe here.

The Bird Angle

= Subscribers only.
Sign in here.
Subscribe here.

The K-12 Takeover

= Subscribers only.
Sign in here.
Subscribe here.

The $68,000 Fish

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Men at Work·

= Subscribers only.
Sign in here.
Subscribe here.

“You’re being reborn,” the voice says. “Exiting the womb of your mother. Coming into the earth as a small baby. Everything is new.” It is a Saturday morning in mid-March, and right now I’m lying on a yoga mat in a lodge in Ohio, surrounded by fifty other men who’ve come to the Midwest for a weekend of manhood-confirming adventures. The voice in question belongs to Aaron Blaine, a facilitator for Evryman, the men’s group orchestrating this three-day retreat. All around me, men are shedding tears as Blaine leads us on a guided meditation, a kind of archetypal montage of Norman Rockwell boyhood. “You’re starting to figure things out,” he says, in somniferous baritone. “Snow, for the first time. Sunshine. Start to notice the smells, the tastes, the confusion. The fear. And you’re growing. You’re about ten years old. The world’s huge and scary.”

Even though it’s only the second day of the Evryman retreat, it’s worth noting that I’ve already been the subject of light fraternal teasing. Already I’ve been the recipient of countless unsought hugs. Already I have sat in Large Groups and Small Groups, and watched dozens of middle-aged men weep with shame and contrition. I’ve had a guy in the military tell me he wants to be “a rock for his family.” I’ve heard a guy from Ohio say that his beard “means something.” Twice I’ve hiked through the woods to “reconnect with Mother Nature,” and I have been addressed by numerous men as both “dude” and “brother.” I have performed yoga and yard drills and morning calisthenics. I’ve heard seven different men play acoustic guitar. I’ve heard a man describe his father by saying, “There wasn’t a lot of ball-tossing when I was growing up.” Three times I’ve been queried about how I’m “processing everything,” and at the urinal on Friday night, two men warned me about the upcoming “Anger Ceremony,” which is rumored to be the weekend’s “pièce de résistance.”

Article
To Serve Is to Rule·

= Subscribers only.
Sign in here.
Subscribe here.

The WASP story is personal for me. I arrived at Yale in 1971 from a thoroughly mediocre suburb in New Jersey, the second-generation hybrid of Irish and Italian stock riding the postwar boom. Those sockless people in Top-Siders, whose ancestors’ names and portraits adorned the walls, were entirely new to me. I made friends with some, but I was not free of a corrosive envy of their habitus of ease and entitlement.

I used to visit one of those friends in the Hamptons, in the 1970s, when the area was about wood-paneled Ford station wagons, not Lamborghinis. There was some money in the family, but not gobs, yet they lived two blocks from the beach—prime real estate. Now, down the road from what used to be their house is the residence of Ira Rennert. It’s one of the largest private homes in the United States. The union-busting, pension-fund-looting Rennert, whose wealth comes from, among other things, chemical companies that are some of the worst polluters in the country, made his first money in the 1980s as a cog in Michael Milken’s junk-bond machine. In 2015, a court ordered him to return $215 million he had appropriated from one of his companies to pay for the house. One-hundred-car garages and twenty-one (or maybe twenty-nine) bedrooms don’t come cheap.

Article
The Bird Angle·

= Subscribers only.
Sign in here.
Subscribe here.

I slept for a good seven hours on the overnight flight from Spain to Peru, and while I slept I dreamed that I was leading American visitors around a park in Berlin, looking for birds on a hazy, overcast day. There wasn’t much to see until we noticed a distant commotion in the sky. Large raptors were panicking, driven back and forth by something threatening them from above. The commotion moved closer. The clouds parted, an oval aperture backed with blue. In it two seraphim hovered motionless. “Those are angels,” I told the group.

They were between us and the sun, but an easy ­I.D. Size aside, no other European bird has two sets of wings. The upper wings cast their faces into shadow. Despite the glare I could make out their striking peaches-­and-­cream coloration. Ivory white predominates, hair a faint yellow, eyes blue, wings indescribably iridescent. Faces blank and expressionless, as with all birds.

Article
The K-12 Takeover·

= Subscribers only.
Sign in here.
Subscribe here.

Last May, the families of students at Cypress Academy, an independent charter school in New Orleans, received an email announcing that the school would close when classes ended the following week and that all its students would be transferred to another nearby charter for the upcoming year. Parents would have the option of entering their children in the city’s charter-enrollment lottery, but the lottery’s first round had already taken place, and the most desirable spots for the fall were filled.

Founded in 2015, a decade after New Orleans became the nation’s first city to begin replacing all its public schools with charters, Cypress was something of a rarity. Like about nine in ten of the city’s charter schools, it filled spaces by lottery rather than by selective admission. But while most of the nonselective schools in New Orleans had majority populations of low-income African-American students, Cypress mirrored the city’s demographics, drawing the children of professionals—African-American and white alike—as well as poorer students. Cypress reserved 20 percent of its seats for children with reading difficulties, and it offered a progressive education model, including “learning by doing,” rather than the strict conduct codes that dominated the city’s nonselective schools. In just three years, the school had outperformed many established charters—a particular feat given that one in four Cypress students had a disability, double the New Orleans average. Families flocked to Cypress, especially ones with children who had disabilities.

Article
Five Stories·

= Subscribers only.
Sign in here.
Subscribe here.

how high? that high

He had his stick that was used mostly to point at your head if your head wasn’t held up proudly.

I still like that man—Holger! He had been an orphan!

He came up to me once because there was something about how I was moving my feet that wasn’t according to the regulations or his expectations.

The room was a short wide room with a short wide window with plenty of artificial light.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Sebastian Gorka, the former deputy assistant to the president who now hosts a radio show called America First, was banned from YouTube for repeatedly uploading audio from the rock band Imagine Dragons without copyright permission.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today