This is really a weird situation. If the telcom companies are being paid by government for their cooperation, are they willing to feign concern along with the administration until congress relents and gives them both what they want? We don't know if the telecom companies are reluctant to go along because of legal concerns or because of their bottom line. Who knows what sort of assurances they are getting from the government. "Just play along and act like you are "endangering" America. Har! It's going to work out great! You'll continue to be paid for your cooperation and you'll get blanket immunity, just in case anything we ever asked you to do was... um, illegal. More revenue plus immunity!"

The sky is falling!

The sky is falling!

Oops... it's just the democracy falling...

The "final holdout" had agreed to break the law.

That's what it boils down to: the telcos have been worried about being hit with expensive lawsuits because they chose to break the law at the behest of the administration. And now, the administration says, all of the telcos are again willing to do so.

I wonder what assurances they were given.

This controversy is not about intelligence, lost or found. Nor is it at heart about any real concern about Telecom liability for breach of privacy in violation of law.
It is solely about the Bush Administration's desire to keep secret its violations of law and the Constitution. Plainly stated, the administrations violation of the law and the Constitution will come out in a civil trial agasint the Telecoms. Immunity for the Telecoms means there will be no civil trial in which such violations will be revealed.

Bush probably told them, "Hey, worst case, I'll just pardon you like I did with Libby."

What's to stop him? Certainly not our brave Democratic leadership in congress.

With these "updates," it's time to revisit the origina lletter in light of the governing standards of conduct. THere appears to be probable cause for DOJ OPR to conduct a criminal investigation into DoJ AG, and forward findings of fact to the District of Columbia Attorney Disciplinary Board. The House/Senate Judiciary/Intelligence Committees need to be energized on these alleged misstatements by DoJ AG and NSA director.

Specifically, DoJ OPR needs to review the original letter, with the subusequent "revisions" and contrast these against the Attorney Standards of Conduct:
- To what extent has the DOJ AG, as a licensed attorney, allegedly breached his attorney standards of conduct, and mispresented facts material to Congress in written communications;
- To what extent has DOJ AG engaged in allegedly reckless statements of law which he knew, or should have known, were not consitent with the laws under FISA affording him broad latitude, on certifiacdtion alone, to direct the telecoms to comply with warrantless surveillance.

The list of reckless statements within the letter might be better characterized as a laundry list of allegations one might expect as a basis to remove the DOJ AG and NSA director, and call for their immediate replacement. This letter was signed by the DOJ AG and the NSA director. We're asked to believe three things [without commenting on whether the assertions are or are not valid]:

A. the government "lost intelligence information" because House Democrats allowed a surveillance law to expire last week

B. Because House Democrats allowed a surveillance law to expire last week, some telecommunications companies to refuse to cooperate with terrorism-related wiretapping orders.

C. the final holdout among the companies had relented and agreed to fully participate in the surveillance program

The truth is that there were no "gaps"; nor was there a relationship between the "statute expiring" and "loss of data"; and there were not "massive" numbers of "partners" unwilling to cooperate, but one [1]. The letter was signed by the DOJ AG and the NSA director. It appears they've provided to Congress, in writing, a signed letter that is false, unreliable, misleading, misrepresenting, or reckless in failing to examine the facts before signing the letter.

A list of sample statutes which the NSA director, DOJ Ag, and telecoms appear to have allegedly breached in providing this false, misleading, and fraudulent information to Congress:

18 USC 1001 governs false statements 18 USC 1030 covers the alleged telecom-NSA fraud using these computers to defraud the United Sates 18 USC 1038 covers false statements related to planned criminal activity or hoaxes. 18 USC 371 is conspiarcy to defraud the United States. 18 USC 873 prohibits anyone from getting anything of value for not reporting illegal activity 18 USC 872 prohibits officials from demanding something of value to do or not do what is required.

Let's reconsider the DOJ AG/NSA director letter in light of [a] the original claims; [b] what the facts subsequently showed; and examine to what extent the NSA, DoJ, and telecoms have allegedly conspired to induce Members of Congress to do something they are not required to do.

- To what extent were the DoJ AG and NSA director jointly and individually reckless in not examining the facts prior to signing this letter;
- Why does the "final outcome" so strikingly contradict the signed assertions DoJ AG and NSA director forwarded to Members of Congress?
- To what extent are the telecoms, DoJ AG, NSA director and others engaged in alleged illegal effforts to induce Members of Congress to do or not do something based on information the DoJ AG, NSA director, and telecoms know or should know is false, unreliable, misleading, and contrary to facts
- To what extent were the DOJ AG and NSA director attempting to support another, to-be-understood effort, related to efforts to induce Members of Congress not to impeach, prosecute, or hold the President, NSA, DoJ, or telecoms to account for alleged violations of FISA?
- To what extent are the DOJ AG and NSA director not using all lawful options to direct the NSA telecoms to lawfully comply with all surveillance orders ['warrants']; and to what extent are they fraudulently asserting that unless Congress does something it is not required to do, that there will be unspecified threats against individual Members of Congress in the form of violence, attacks, and other illegal acts of violence?
- To what extent are the DOJ AG/NSA director's assertions that there are "inaccuracies" and "misunderstandings" not supported by any factual evidence, but are fraudulent efforts to induce Congress to do what it is not required to do as long as DoJ AG will certify that warrantless surveillance is permitted?
- To what extent are statements that [plural] "partners" have reduced "their" cooperation misleading, unreliable, and intended to mislead Congress about the scope of the telecom's resistance to comply with lawful warrants; and to what extent is this overstatement intended to mislead the Congress to induce it to agree to something it is not required to agree?

There are several disturbing assertions in the letter, which, in light of the "updates" appear to be false, misleading, and recklessly stated without reasonable due diligence expected of the DOJ AG and NSA director. House and Senate Judiciary and Intelligence Committee Staffs, along with their counterparties in the DOJ IG and NSA IG should immediately coordinate with DOJ OPR to review several statements which appear to have been assertions without the necessary qualifications expected of legal counsel, and could be subject to disciplianry proceedings by the District of Colubmia Disciplinary Board. The issue is to what extent DoJ AG, as a licensed attorney, as allegedly engaged in professional misconduct, ABA rule 4.1

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

The letter, as crafted, but which allegedly grossly misrepresents the facts could be seen as a violation of the Attorney Standards of Conduct. Rule 8.1 expressly prohibits dishonesty, fraud, deceit, or misrepresentation:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

This statement appears to be reckless in that it asserts that something "has" adversely been affected, but later press releases indicate there has been no impact:

"The Acts expiration has and may well continue to adversely affect such activities"

This assertion incorrectly suggests the DOJ AG has no option, and cannot order the telecoms to conduct lawfully surveillance, even without warrants:

"This uncertainty may well continue to cause us to miss information"

Contrary to the DOJ AG/NSA director's assertions, there was no uncertainty that would credibly "cause" any of the telecoms to lawfully refuse to comply with a warrant; nor is there any legal basis for the DOJ AG or NSA director to assert that, until the law is changed, the telecoms have a lawful basis to deny contracted services to the NSA, or refuse to respond to lawful warrants.

This statement asks that we accept the "experience" of the DOJ AG and NSA director; and believe that these "experiences" related to these "concerns" are certain, not speculative, and specific:

"Our experience in the past few days since the expiration of the Act demonstrates that these concern are neither speculative nor theoretical"

In truth, we learn the opposite, raising questions about the integrity, truthfulness, and competence of the NSA director and DoJ AG. Todays' relevations support the conclusion that this statement is false, reckless, a misreprentation, and raise Atty Standards of Conduct issues:

"Indeed, this has led directly to a degraded intelligence capability."

Yet, contrary to the DOJ AG/NSA director assertion, there has been no degradation of any "capability," only in the willingness of the telecoms to blindly turn over evidence that is not connected with a lawful intelligence operation. That is hardly a "degraded" intelligence capability, but one that remains more robust within the umbrella of FISA, as intended after the Watergate abuses. Contrary to the DOJ AG/NSA director's allegedly false, reckless, and misleading assertion, the data has not been "lost", but the telecoms have rightfully refused to turn over data which the DOJ AG will not certify must be turned over without warrants.

DoJ AG should know that this statement is allegedly a false statement of law, in alleeed violation of DC Atty standards of conduct:

"FISA requires far more, and it would be illegal to proceed as you suggest."

Contrary to DOJ AG's assertion, FISA requirements do not prohibit retroactive warrants; nor is the DOJ AG prohibited from certifying that warrants are not required. This is an alleged misstatement of law to Congress.

This statement allegedly misrepresents the issues raised in the original letters, and fails to provide any textual references, supporting the assertion that this statement is also false, misleading, and a misrepresentation:

"It is also inaccurate to state that because Congress has amended FISA several times, there is no need to modernize FISA."

DoJ AG and NSA director failed to cite their sources, the basis for this assertion, and refused to credibly argue there is a link between [a] FISA amendments; and [b] modernizing FISA. Even if FISA were never updated, the DOJ AG would still be able to certify warrantless surveillance is required. DOJ AG and NSA director failed to discuss why the NSA modernization programs did not include fully funded programs that would fall within the existing FISA baseline. This is irresponsible by the DOJ AG and NSA director, raising doubts about their leadership, competence, and fitness for duty on the President's cabinet.

This statement is allegedly grossly reckless, false, and a misrepresentation, especially in light of the true facts: The telecoms were fully cooperating:

"These difficulties have only grown since expiration of the Act"

Again, contrary to the DoJ AG and NSA director's assertion, these difficulties are non-existent, have not grown, and the experation of the Act has not impeded any of the telecoms from fully complying with all lawful warrants; nor in their cooperating with fully responding to DOJ AG certifications that warrantless surveillance is required.

This statement, in light of the "updates" after the letter was signed, shows the DOJ AG and NSA director have been allegedly reckless with their written statements to Congress:

"[T]he House contains certain provisions and technical flaws that would fatally undermine our ability to collect effectively the intelligence needed to protect the nation."

Contrary to the DOJ AG/NSA director's written assertion to Congress, the ability to collect intelligence has not been undermined; the House bill does not cause problems; the expiration of the current legislation does not generate unsolvable problems; and the DOJ AG and NSA director knew or should have known that the expiration of the bill does not impede any lawful intelligence collection activity per FISA warrants or DOJ AG certifications that warrants are not required.

I wonder where Obama & Clinton stand on this entire bill. Would either of them ask congress to simply "table" this repeal of the Fourth Amendment, in support of the Constitution?

In fact, what would either of them do about Habeas Corpus, and Gitmo, and all the other atrocities being perpetrated by the Bush adiminstration against our Constitution?

Can we find anyone to ask that question?