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 168 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2018

Combustion Engines

= Subscribers only.
Sign in here.
Subscribe here.

There Will Always Be Fires

= Subscribers only.
Sign in here.
Subscribe here.

The End of Eden

= Subscribers only.
Sign in here.
Subscribe here.

How to Start a Nuclear War

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Combustion Engines·

= Subscribers only.
Sign in here.
Subscribe here.

On any given day last summer, the smoke-choked skies over Missoula, Montana, swarmed with an average of twenty-eight helicopters and eighteen fixed-wing craft, a blitz waged against Lolo Peak, Rice Ridge, and ninety-six other wildfires in the Lolo National Forest. On the ground, forty or fifty twenty-person handcrews were deployed, alongside hundreds of fire engines and bulldozers. In the battle against Rice Ridge alone, the Air Force, handcrews, loggers, dozers, parachutists, flacks, forecasters, and cooks amounted to some nine hundred people.

Rice Ridge was what is known as a mega-fire, a recently coined term for blazes that cover more than 100,000 acres. The West has always known forest fires, of course, but for much of the past century, they rarely got any bigger than 10,000 acres. No more. In 1988, a 250,000-acre anomaly, Canyon Creek, burned for months, roaring across a forty-mile stretch of Montana’s Bob Marshall Wilderness in a single night. A few decades on, that anomaly is becoming the norm. Rice Ridge, for its part, swept through 160,000 acres.

At this scale, the firefighting operation is run by an incident management team, a group of about thirty specialists drawn from a mix of state and federal agencies and trained in fields ranging from aviation to weather forecasting and accounting to public information. The management teams are ranked according to experience and ability, from type 3 (the least skilled) to type 1 (the most). The fiercest fires are assigned to type 1s. Teams take the name of their incident commander, the field general, and some of those names become recognizable, even illustrious, in the wildfire-fighting community. One such name is that of Greg Poncin, who is to fire commanders what Wyatt Earp was to federal marshals.

Smoke from the Lolo Peak fire (detail) © Laura Verhaeghe
Article
There Will Always Be Fires·

= Subscribers only.
Sign in here.
Subscribe here.

The pinhal interior, a wooded region of hills and narrow hollows in rural central Portugal, used to be farmland. Well into the latter half of the past century, the fields were worked by peasants from the old stone villages. Portugal was poor and isolated, and the pinhal interior particularly so; when they could, the peasants left. There is electricity and running water now, but most of the people have gone. The fields have been taken over by trees. Each year the forest encroaches farther, and each year the villages grow more lonely. There are remnants of the earlier life, though, and amid the trees the holdouts of the older generations still work a few small fields. The pinhal interior cannot yet be called wilderness, then, and that, in large part, is why it burns.

Thousands of fires burn in the region each summer, almost all of them started not by lightning or some other natural spark but by the remaining Portuguese. (The great majority of the blazes are started unintentionally, though not all.) The pinhal interior—the name means “interior pine forest,” though today there is at least as much eucalyptus as pine—stretches along a sort of climate border between the semiarid Iberian interior and the wet influence of the Atlantic; vegetation grows exceptionally well there, and in the summers fire conditions are ideal. Still, most of the burns are quickly contained, and although they have grown larger in recent years, residents have learned to pay them little mind. The creeping fire that began in the dry duff and twigs of an oak grove on June 17 of last year, in the district of Pe­drógão Grande, therefore occasioned no panic.

A local woman, Dora da Silva Co­sta, drove past the blaze in the midafternoon, by which time it had entered a stand of pines. Firefighters were on hand. “There were no people in the streets,” Costa told me. “It was just another fire.” She continued on her way. It was a Saturday, and she had brought her two young sons to visit their older cousin in Vila Facaia, the village of small farms in which she’d been raised.

Firefighters near Pedrógão Grande (detail) © Pablo Blazquez Dominguez/Getty Images
Article
The End of Eden·

= Subscribers only.
Sign in here.
Subscribe here.

On a blistering morning in July 2017, Ghazi Luaibi rose before dawn and set out in a worn black sedan from his home in Zubair, a town of concrete low-rises in southern Iraq. He drove for a while along sandy roads strewn with plastic bags. On the horizon, he could see gas flares from the oil refineries, pillars of amber flame rising into the sky. As he approached Basra, the largest city in the province, desert scrub gave way to empty apartment blocks and rows of withered palms. Though the sun had barely risen, the temperature was already nearing 100 degrees Fahrenheit. The previous year, Basra had registered one of the highest temperatures ever reliably recorded on earth: about 129 degrees, hot enough to cause birds to drop from the sky.

Ghazi, a sixty-two-year-old with stooped shoulders, an ash-gray beard, and lively brown eyes, would have preferred to stay home and wait out the heat. But he hadn’t had much of a choice. He was the president of the local council of Mandaeans, members of a gnostic religion that appeared in Mesopotamia in the early centuries ad. Today marked the beginning of their new year, and Ghazi, who was born into the Mandaean priestly class, was responsible for making sure everything went smoothly: he needed to find a tent to shield worshippers from the sun and, most importantly, a location near flowing water where they could carry out the ceremony.

Mandaean holidays are celebrated with a mass baptism, a ritual that is deeply rooted in their scripture and theology. Mandaeans follow the teachings of Yahia Yuhana, known to Christians as John the Baptist. Water is central to their religion. They believe that all life originates in the World of Light, a spiritual realm that is the starting point for a great river known as Yardana, or Jordan. Outside the World of Light lie the lifeless, stagnant waters of the World of Darkness. According to one version of the Mandaean creation myth, a demiurge named Ptahil set out to shape a new world from the World of Darkness, which became the material world we inhabit today. Once the world was complete, Ptahil sculpted Adam, the first man, from the same dark waters as the earth, but his soul came from the World of Light. In Mandaean scripture, rivers are manifestations of the World of Light, coursing from the heavenly Jordan to the earth to purify it. To be baptized is to be immersed in this divine realm.

Basra General Hospital (detail) July 2017 © Alex Potter
Article
How to Start a Nuclear War·

= Subscribers only.
Sign in here.
Subscribe here.

Serving as a US Air Force launch control officer for intercontinental missiles in the early Seventies, First Lieutenant Bruce Blair figured out how to start a nuclear war and kill a few hundred million people. His unit, stationed in the vast missile fields at Malmstrom Air Force Base, in Montana, oversaw one of four squadrons of Minuteman II ­ICBMs, each missile topped by a W56 thermonuclear warhead with an explosive force of 1.2 megatons—eighty times that of the bomb that destroyed Hiroshima. In theory, the missiles could be fired only by order of the president of the United States, and required mutual cooperation by the two men on duty in each of the launch control centers, of which there were five for each squadron.

In fact, as Blair recounted to me recently, the system could be bypassed with remarkable ease. Safeguards made it difficult, though not impossible, for a two-man crew (of either captains or lieutenants, some straight out of college) in a single launch control center to fire a missile. But, said Blair, “it took only a small conspiracy”—of two people in two separate control centers—to launch the entire squadron of fifty missiles, “sixty megatons targeted at the Soviet Union, China, and North Korea.” (The scheme would first necessitate the “disabling” of the conspirators’ silo crewmates, unless, of course, they, too, were complicit in the operation.) Working in conjunction, the plotters could “jury-rig the system” to send a “vote” by turning keys in their separate launch centers. The three other launch centers might see what was happening, but they would not be able to override the two votes, and the missiles would begin their firing sequence. Even more alarmingly, Blair discovered that if one of the plotters was posted at the particular launch control center in overall command of the squadron, they could together format and transmit a “valid and authentic launch order” for general nuclear war that would immediately launch the entire US strategic nuclear missile force, including a thousand Minuteman and fifty-four Titan missiles, without the possibility of recall. As he put it, “that would get everyone’s attention, for sure.” A more pacifically inclined conspiracy, on the other hand, could effectively disarm the strategic force by formatting and transmitting messages invalidating the presidential launch codes.

When he quit the Air Force in 1974, Blair was haunted by the power that had been within his grasp, andhe resolved to do something about it. But when he started lobbying his former superiors, he was met with indifference and even active hostility. “I got in a fair scrap with the Air Force over it,” he recalled. As Blair well knew, there was supposed to be a system already in place to prevent that type of unilateral launch. The civilian leadership in the Pentagon took comfort in this, not knowing that the Strategic Air Command, which then controlled the Air Force’s nuclear weapons, had quietly neutralized it.

This reluctance to implement an obviously desirable precaution might seem extraordinary, but it is explicable in light of the dominant theme in the military’s nuclear weapons culture: the strategy known as “launch under attack.” Theoretically, the president has the option of waiting through an attack before deciding how to respond. But in practice, the system of command and control has been organized so as to leave a president facing reports of incoming missiles with little option but to launch. In the words of Lee Butler, who commanded all US nuclear forces at the end of the Cold War, the system the military designed was “structured to drive the president invariably toward a decision to launch under attack” if he or she believes there is “incontrovertible proof that warheads actually are on the way.” Ensuring that all missiles and bombers would be en route before any enemy missiles actually landed meant that most of the targets in the strategic nuclear war plan would be destroyed—thereby justifying the purchase and deployment of the massive force required to execute such a strike.

Among students of nuclear command and control, this practice of precluding all options but the desired one is known as “jamming” the president. Blair’s irksome protests threatened to slow this process. When his pleas drew rejection from inside the system, he turned to Congress. Eventually the Air Force agreed to begin using “unlock codes”—codes transmitted at the time of the launch order by higher authority without which the crews could not fire—on the weapons in 1977. (Even then, the Navy held off safeguarding its submarine-launched nuclear missiles in this way for another twenty years.)

Following this small victory, Blair continued to probe the baroque architecture of nuclear command and control, and its extreme vulnerability to lethal mishap. In the early Eighties, while working with a top-secret clearance for the Office of Technology Assessment, he prepared a detailed report on such shortcomings. The Pentagon promptly classified it as SIOP-ESI—a level higher than top secret. (SIOP stands for Single Integrated Operational Plan, the US plan for conducting a nuclear war. ESI stands for Extremely Sensitive Information.) Hidden away in the Pentagon, the report was withheld from both relevant senior civilian officials and the very congressional committees that had commissioned it in the first place.

From positions in Washington’s national security think tanks, including the Brookings Institution, Blair used his expertise and scholarly approach to gain access to knowledgeable insiders at the highest ranks, even in Moscow. On visits to the Russian capital during the halcyon years between the Cold War’s end and the renewal of tensions in the twenty-first century, he learned that the Soviet Union had actually developed a “dead hand” in ultimate control of their strategic nuclear arsenal. If sensors detected signs of an enemy nuclear attack, the USSR’s entire missile force would immediately launch with a minimum of human intervention—in effect, the doomsday weapon that ends the world in Dr. Strangelove.

Needless to say, this was a tightly held arrangement, known only to a select few in Moscow. Similarly chilling secrets, Blair continued to learn, lurked in the bowels of the US system, often unknown to the civilian leadership that supposedly directed it. In 1998, for example, on a visit to the headquarters of Strategic Command (­STRATCOM), the force controlling all US strategic nuclear weapons, at Offutt Air Force Base, near Omaha, Nebraska, he discovered that the ­­­STRATCOM targeting staff had unilaterally chosen to interpret a presidential order on nuclear targeting in such a way as to reinsert China into the ­SIOP, from which it had been removed in 1982, thereby provisionally consigning a billion Chinese to nuclear immolation. Shortly thereafter, he informed a senior White House official, whose reaction Blair recalled as “surprised” and “befuddled.”

In 2006, Blair founded Global Zero, an organization dedicated to ridding the world of nuclear weapons, with an immediate goal of ending the policy of launch under attack. By that time, the Cold War that had generated the ­SIOP and all those nuclear weapons had long since come to an end. As a result, part of the nuclear war machine had been dismantled—warhead numbers were reduced, bombers taken off alert, weapons withdrawn from Europe. But at its heart, the system continued unchanged, officially ever alert and smooth running, poised to dispatch hundreds of precisely targeted weapons, but only on receipt of an order from the commander in chief.

Bombhead, by Bruce Conner (detail) © Conner Family Trust, San Francisco, and ARS, New York City. Courtesy Kohn Gallery, Los Angeles

Minimum cost of a “pleasure palace” being built for Vladimir Putin:

$1,000,000,000

Israeli researchers claimed to have identified a ruthlessness gene.

Trump and Putin puzzle out cybersecurity in Helsinki, John Kelly didn't like his breakfast in Brussels, and a family of woodchucks ate the wiring in Paul Ryan's car

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

HARPER’S FINEST

Happiness Is a Worn Gun

By

Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today