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The Telecoms and The Big, Bad Lawsuits
What's best for the telecoms is best for the nation's security, the administration has argued. And what's best for the telecoms is for all those lawsuits against them for cooperating with the warrantless wiretapping program to go away. After all, "these people are responsible for shareholders."
But while administration officials like the director of national intelligence and attorney general have asserted that the telecoms face the "continued risk of billion-dollar class action suits," it's worth putting that claim in context.
I asked Kurt Opsahl, who represents the Electronic Freedom Foundation in its class action suit against AT&T, to walk me through.
EFF's suit features evidence provided by former AT&T technician Mark Klein, who disclosed two years ago how the company had allowed the NSA to use a small room in San Francisco to capture untold millions of phone and e-mail communications. EFF’s complaint charges that the program violated the First and Fourth Amendments and Foreign Intelligence Surveillance Act and other federal statutes.
Above all, Opsahl said, it's important to realize that for the plaintiffs in the suit to collect damages of billions, "they need to have spied on a lot of people. If they say that the interceptions and surveillance is limited to only people in communication with Al Qaeda, that suggests it's a very small number and therefore a very small amount in damages. For it to be billions, they need to have spied on millions of people."
There are 37 suits against the telecommunications companies alleged to have participated in the program, i.e. AT&T, BellSouth, Sprint and MCI/Verizon; suits that have all been transferred to federal court California's Northern District. Six of those suits are on behalf of state officials in Missouri, Maine, New Jersey, Connecticut and Vermont to investigate the program.
Should damages be awarded, however, they would be awarded based on how many people the government, via the telecoms, surveilled illegally, not the number of suits, Opsahl said. EFF's complaint excludes "foreign powers," "agents of foreign powers" and "anyone who knowingly engages in sabotage or international terrorism" from the class.
When I asked Opsahl what he thought likely damages against AT&T might be -- if the suit was successful on all of its claims, a very big "if" (see below) -- he said $13,000 per customer who was a victim of illegal surveillance.
But a final judgment, should one ever come, is years away. Right now, EFF is waiting for a decision from the Ninth Circuit Court of Appeals on whether the government can invoke the state secrets privilege to rebuff lawsuits challenging the program. It's not clear when such a decision will come (they've been waiting for more than six months). Regardless of its outcome, that decision is likely to be appealed all the way up to the Supreme Court, Opsahl said, a process that could take years.
If EFF is successful there, the next battle begins: government lawyers will likely argue that the President has the right, because of Constitutional powers, to ignore the Foreign Intelligence Surveillance Act. That will likely set in motion another decision, appeals and counter-appeals all the way up to the Supreme Court.
"Maybe, after we've been to the Supreme Court twice, we might go back down to the district court and actually begin litigating the case," Opsahl told me. "The question of damages is a long, long way away."
If the latest signs from Congress are any indication, however, EFF might soon be confronted with legislation that will make its suit even more difficult. But that will mean just another fight, Opsahl says.
"It raises the interesting question of whether you can bar people from bringing Constitutional claims to the court and if immunity passes, we're going to look at all of our available options." For now, he said, EFF was concentrating its energy on convincing Congress not to grant the telecoms retroactive immunity.
"People have been trying to get rid of our lawsuit for a long time now. We'll take each day at a time."
Josh
Zachary
As grotesque as they are, and as much damage as they've done to the constitution and our rule of law, you just have to admire the Republicans' will to power. Granted, it's a force that's acting in a vacuum -- there is no opposing force against which to truly assess it, since to be a Democrat is, by definition, to be submissive -- but that submissiveness is in large part due to the effective projection of the will to power as implacable, unstoppable, resolute. It is, ultimately, a self-fulfilling identity.
Props, in a sick way.
March 4, 2008 4:49 PM | Reply | Permalink
Paul Kiel,
Congress does not have judicial power to affect the outcome of pending cases. Aruably, EFF could challenge the immunity act (if passed) on the grounds that it is an unconstitutioanl assertion of judicial power by the Congress and President.
Next time you talk to EFF, could you ask them about an immunity bill being unconstitutional; and the EFF plan to challenge an immunity bill on those grounds? Thank you.
March 4, 2008 4:58 PM | Reply | Permalink
The risk of monetary damages is one that the telecoms, President, and Congress knew existed as part of the original FISA legislation.
It cannot be argued that the "risk" of litigation costs or damage awards is a "new" concern in 2008. The question is why the telecom General Counsels did not incorporate this risk, and demand immunity or contrat language which would shield them from suit at the outset. Oh, that's right: Such a "thing" is called a warrant. They didn't do that.
It apepars the telecom GC's relied on an unreasonable expectation that the alleged illegal activity would be shielded, hidden, or never litigated. Oh, isn't that an arguably reckless assumption of the telecom GC's to make. Isn't that legal malpractice?
This is a problem the telecom GC's failed to manage. If the telecom boards of directors are not happy with the legal consequences, they do have the power to litigate against their GC's on alleged malpractice grounds.
Please ask the telecom boards of directors their plans to sue their general counsels for legal malpractice.
And, as along as the telecoms are alleged to engage in illegal acdtivity, could someone inquire into the state corporate governance standards; and ask how the telecoms can meet their loan covenants, and maintain good standing under their states' incorporation standards?
March 4, 2008 5:03 PM | Reply | Permalink
It's amazing how quickly the US government will abuse power, and how long it takes the government to respond to the law.
A credible system of overisght would timely impose meaningful consequences, not require years of litigation to "possibly" protect the Constition. Oh, that's right, that's what impeachment is for.
Since members of Congress aren't interested in defending the Constitution, let's prosecute them at the State level.
March 4, 2008 5:05 PM | Reply | Permalink
"testing" referred readers to a DailyKos entry from yesterday:
http://www.dailykos.com/story/2008/3/3/175235/4425/727/468112
It's worth looking at, because it explains "the unique way the House considers legislation, making frequent use of 'special rules' which render it procedurally "in order" to debate and vote on a bill." http://www.rules.house.gov/archives/obt_floor_consid.htm
DailyKos's main point is that
The Rules Committee must allow it to come to a vote before it can go to the general membership. Here are the members of that committee:
LOUISE McINTOSH SLAUGHTER, NY - CHAIRWOMAN (D)
(202) 225-3615 [phone]
(202) 225-7822 [fax]
JAMES P. McGOVERN, MA (D)
Phone: (202) 225-6101
Fax: (202) 225-5759
DAVID DREIER, CA, Ranking Minority Member (R)
Office (202) 225-2305
Fax (202) 225-7018
ALCEE L. HASTINGS, FL (D)
Tel: (202) 225-1313
Fax: (202) 225-1171
LINCOLN DIAZ-BALART, FL (R)
Phone: (202)225-4211
Fax: (202)225-8576
DORIS O. MATSUI, CA (D)
Phone: (202) 225-7163
Fax: (202) 225-0566
DOC HASTINGS, WA (R)
Phone: (202) 225-5816
Fax: (202) 225-3251
DENNIS CARDOZA, CA (Blue Dog)
Phone: (202) 225-6131
Fax: (202) 225-0819
PETE SESSIONS, TX (R)
202) 225-2231
(202) 225-5878 fax
PETER WELCH, VT (D)
Phone:(202) 225-4115
No fax listed
KATHY CASTOR, FL (D)
Phone: (202)225-3376
Fax: (202)225-5652
MICHAEL ARCURI, NY (D)
ph: (202) 225-3665
fax: (202) 225-1891
BETTY SUTTON, OH (D)
Phone: (202) 225-3401
Fax: (202) 225-2266
Call them to let them know that doing nothing about the PAA and FISA is the best option. Just let it go until Bush is gone (probably want to leave that part out with the Republicans), and then we can all deal with things sanely and without special interests dominating the debate.
March 4, 2008 5:31 PM | Reply | Permalink
testing, on the question of whether EFF would challenge retroactive immunity, please see the end of the piece:
Sounds to me like EFF would more than likely challenge such a law.
March 4, 2008 5:35 PM | Reply | Permalink
Right, I was asking for TPMM to ask EFF directly what the grounds of that challenge would be.
Conversely, once Members of Congress have fair notice that their actions, in passing the bill, were an unconstitutional assertion of judicial power, there might be less whining when the 5 USC 3331 indictments appear against Members of Congress for their failure to enforce the Constitution.
March 4, 2008 6:01 PM | Reply | Permalink
Bush should just do his best Animal House impersonation, slap the telecoms on the shoulder, and say, 'You fucked up--you trusted us.'
March 4, 2008 5:45 PM | Reply | Permalink
"It cannot be argued that the "risk" of litigation costs or damage awards is a "new" concern in 2008. The question is why the telecom General Counsels did not incorporate this risk, and demand immunity or contrat language which would shield them from suit at the outset. Oh, that's right: Such a "thing" is called a warrant."
Not so fast: a commenter over at Kevin Drum's claims that he is familiar with telco practices and that there is no way they failed to get an indemnification agreement. For the non-lawyers out there, that's basically a contract saying if you get hit with damages, I (the U.S., in this case) promise to pay the bill. So the whole "telco's must get immunity or they won't cooperate in the future" argument is probably a charade; what's at stake for the Admin is killing the trials off before any discovery takes place.
March 4, 2008 5:47 PM | Reply | Permalink
If what you;re saying is true -- that the telecoms have "indemnification" -- then what's the point with the immunity? If they don't need it, then the "immunity for the telcoms" is really about the President.
Either the President is lying, and he knows the immunity deal is about him; or he's telling the truth, and the telecoms have no indemnification, despite the warrant which would have provided that. This isn't adding up; and it's one for the President and telecoms to explain to the Court, not Congress.
Either way, there's no reason to package the immunity promise within the changes to FISA.
March 4, 2008 6:06 PM | Reply | Permalink
There was a post at Washington Monthly last week that covered some of this ground; keyword = "indemnification".
The gist: the telcos got indemnity agreements, which would protect them from financial damages. It does explain why they aren't making as much heat and light over the immunity clause as the Bush Administration. In short, the Bush Administration is pushing this because they're afraid of what the discovery process will unearth if any lawsuits go forward.
No lawsuit = no discovery = no accountability for Bush Administration illegal actions.
Definitely worth checking out.
http://www.washingtonmonthly.com/archives/individual/2008_03/013236.php
March 4, 2008 5:49 PM | Reply | Permalink
Let's presume that indemnification was discussed. Some assert there's a hidden agreement. However, Senator Rockefeller asserts the opposite: There was no indeminification..
Either a lawyer has it wrong, and is making an assumption about something they know nothing about; or Rockefeller is lying in an editorial to the public.
- Is someone making an allegation that the President, NSA, and DoJ have promised to provide funds to the telecoms, but have not disclosed this agreement to Congress?
- Or is it the contention of some that the Congress knows about this secret agreement, but is "spending time" on something that is a waste (unconstitutional assertion of judicial power); but not spending time on something that is valuable (impeachment)?
March 4, 2008 6:44 PM | Reply | Permalink
Over at Dailykos they have a great blog about how Bushco has already given the Telcos indemnity from prosecution for the warrentless wiretapping. Apparently, that is why the Telcos have been so silent about all of this. They already got indemnity so their butts aren't on the line anymore. Bushco wants immunity so that none of that comes to light.
It makes perfect sense! The Telcos have nothing to worry about but Bushs ass is on the line if that gets out.
March 4, 2008 5:59 PM | Reply | Permalink
Link?
March 4, 2008 6:06 PM | Reply | Permalink
Here is the apparent article.
March 4, 2008 6:35 PM | Reply | Permalink
To clarify, the point is that the "risk of financial consequences" (whatever they are; real or imaginary) isn't something that popped onto the radar only in 2007-8.
Rather, it was known from the outset going forward from 2001, that there are legal consequences for FISA violations. Bush is acting like something is new, unforeseeable, and surprising. Whether the problem is his or with the telecoms is secondary to the issue: The FISA requirements clearly promulgated for the President, telecoms, and NSA the financial liabilities for their violations of the law.
March 4, 2008 6:21 PM | Reply | Permalink
Unfortunately, I don't know how to link, it is currently on the front page at Dailykos.
March 4, 2008 6:29 PM | Reply | Permalink
Now you know.
March 4, 2008 6:36 PM | Reply | Permalink
I'm going to call BS on bmaz "logic":
Bmaz is incorrectly assuming the telecoms "did" something, when the evidence suggests they did not. Think back to Qwest: The CEO refused on the grounds that there was a problem with legality. The other telecoms didn't.
If, as bmaz suggests, there "was" an agreement, and the telecoms "did" have immunity, then why would Qwest have any fear? Bmaz fails to address this.
The existence of an indemnity agreement would have been attached to a lawful warrant; or a legal process which complied with FISA. Again, Qwest balked. If Bmaz assertion were true, there would have been no legal basis for Qwest to have balked, and they should have been prosecuted.
The only reasonable conclusion is that Qwest got it right: The assurances, promised immunity, or other agreements -- TBD -- were not within what a reasonable CEO or telecom could rely. There may have been assurances on immunity or indemnification, but it appears based on Qwest's actions, that a reasonable corporate officer would not find those assurances compelling.
If there was an agreement, as Bmaz suggests, and this agreement was one that the Qwest CEO could have relied, then then Bmaz fails to explain why the Qwest CEO was not prosecuted. In this analysis, we make not comment on whether a reasonable attorney's view is or isn't consistent with that of the Qwest CEO; nor do we call into question the professional competence of an attorney who suggests there is an agreement which the Qwest CEO refused to recognize as lawful or one he could rely.
If Bmaz would like to make a compelling argument about a "secret agreement," then he needs to ensure his reasoning isn't one that narrowly focuses on his view of what is reasonable, but
A. Incorporate the President's open denial that they warrants were not required, when they were;
B. Discuss why Senator Rockfeller has contradicted BMaz; and
C. Explain why the Qwest CEO did not find these US government assurances -- whatever they were -- as reasonable protections going forward from 2001.
March 4, 2008 7:26 PM | Reply | Permalink
Let's presume that indemnification was discussed. Some assert there's a hidden agreement. However, Senator Rockefeller asserts the opposite: There was no indemnification.
I think that's a misreading of the passage in Rockefeller's essay. He's pretty clearly talking about the decision not to try to pass a law indemnifying the telecom companies, which says nothing about whether the executive branch already gave the telecoms an indemnification agreement on its own.
March 4, 2008 7:46 PM | Reply | Permalink
Of course the President and those who are for grabbing more power, will contend that they have every right under the circumstances.
Circumstances that can be constructed or construed, by a Government, which has little regard for the Constitution. Giving itself more powers than were enumerated.
http://en.wikipedia.org/wiki/United_States_Bill_of_Rights
the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"[1] and reserves all powers not granted to the federal government to the citizenry or states.
http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
March 4, 2008 7:47 PM | Reply | Permalink
Rockefeller's editorial on October 31, 2007, does not say that indemnity was never granted by Bush. It says that indemnity is not part of the current FISA changes being disucussed by the Senate.
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/30/AR2007103001821.html
dKOS says that Congress must be notified of indeminity agreements "in excess of 25 million dollars." We don't know whether Bush followed that law. But given how Pelosi, Harman and Rockefeller signed-off on torture when asked to by AG Ashcroft, did they also sign-off on indemnity? If not them, who in Congress was notified?
March 4, 2008 7:48 PM | Reply | Permalink
It's time to confront the Congress before a war crimes tribunal. They're gumming the real issue to death: To what extent Members of Congress have been complicit with Geneva violations since 2001. Until Congress and the American legal community are confronted with a war crimes tribunal, we'll continue to hear only part of the story.
Let's talk about a new system of oversight for the US government to ensure treaty enforcement, sanctions for complicity with war crimes, and more effective consequences on legal counsel for their alleged complicity with war crimes, violations of the law, and failure to adequately challenge unlawful conduct.
March 5, 2008 4:21 PM | Reply | Permalink
Why was Qwest not prosecuted?
(Not a lawyer) answer: Because the defense would gain right to discovery which would reveal more than Bush was willing to defend in court.
Explain why the Qwest CEO did not find these US government assurances reasonable protections.
Answer: Because his lawyers asked for a FISA warrant and did not receive one. They followed the law. They called Bush's bluff and he folded, thus his assurances were not accepted as reasonable protection.
It would be interesting to know if Bush approached all of the telecoms at the same time or individually, and what legal documents he provided to each company. Did some telecoms need more coaxing than others? If so, why?
Also what documents is Rockefeller talking about in this sentence "We closely studied the facts, the documents and the alternatives to liability for the companies."?
March 4, 2008 8:07 PM | Reply | Permalink
Cheney with Lehrer on PBS:
http://mediamatters.org/items/200602090001
CHENEY: We believe, Jim, that we have all the legal authority we need. ... But as I say, we believe firmly that based on the Constitution, based on the authorization for the use of force Congress passed in the immediate aftermath of 9-11 , that we have all the legal authority we need with respect to the NSA program.
Based on this statement by Cheney, the BushCO legal argument will be inherent executive war powers. Which could imply that they know they should have had Congressional notification or done more in some manner to reach a level of legality.
That war powers argument basically means "We know we ran afoul of the law."
March 4, 2008 8:15 PM | Reply | Permalink
Tester @7:26 pm - As to your first "issue", I, for one, would not believe anything Bush says. He is not very well informed on the details of things and rarely really understands what he is babbling about. Tack onto that the known propensity of Bush for dishonesty and outright lying. I am at a loss as to why you think the "President's open denial" means diddly squat. Now, I don' buy it, but the Bush position at the time was that they had the legal power pursuant to their Article II powers in conjunction with the AUMF. If given written promises and certifications, which they almost certainly were, I don't believe that it would have been patently unreasonable for a telco to rely on that. I would not have, but I understand how many could.
As to your second issue, Sen Jello Jay Rockefeller, Paul W @7:46 with this "I think that's a misreading of the passage in Rockefeller's essay. He's pretty clearly talking about the decision not to try to pass a law indemnifying the telecom companies, which says nothing about whether the executive branch already gave the telecoms an indemnification agreement on its own." and yesiwantthefrieswiththat @ with this "Rockefeller's editorial on October 31, 2007, does not say that indemnity was never granted by Bush. It says that indemnity is not part of the current FISA changes being disucussed by the Senate." give you the answer. By the way, Rockefeller would love to have all this shut down by immunity, because the more the truth comes out, the worse he looks.
As to your third issue, I will give you the same warning I have given everybody else that thinks the Qwest part of this is a grand explanation of anything. It may be, or it may not be; we don't have anywhere close to enough information to make any determination. In fact, we don't even know with any certainty that Qwest's non-participation was due to a legal objection. That view is based upon language in a pleading in the criminal case against Joe Nacchio who was prosecuted and convicted for financial fraud at Qwest. There have been rumors that the real reason that Qwest was the holdout was that Nacchio was trying to cut a more profitable deal so that he could use the proceeds to cover the financial irregularities at Qwest. I don't know if that is true or not, but it is at least plausible. Many explanations of the Qwest part are plausible; and we have no idea what the true story is at this time.
Now, I don't know for sure that my indemnification theory is correct. I think that it is quite likely that it is, but the only way to really know is to ask the questions and get the answers. n That is all I ask, that people understand the argument and it's ramifications and demand answers before granting immunity and shutting down the lawsuits that are our best path to discovery of what has been done in our name.
March 4, 2008 11:05 PM | Reply | Permalink
If there is a "secret indeminification," who's going to write the check? under what statutory authority? from which department's account? from what funds?
March 5, 2008 12:35 AM | Reply | Permalink
The problem with your analysis is that you're assuming silence by the telecoms means something, but cannot mean something else. That is not a fair analysis. Consider litigation strategy. The telecoms are not allowed, perhaps, to either confirm or deny something. It could be their strategy to remain silent, then invoke "state secrets". Your analysis fails to account for this.
If you're going to make an argument that "silence means there is an agreement," you shall keep an open mind to the valid questions about this assertion. You may be correct -- there could be an indemnification/immunity agreement in place, which Congress has or hasn't been told about. But I reject the sweeping assertion that "silence by the telecoms" means that they are not pushing for immunity because they already have it. Rather, as stated, silence could be part of their litigation strategy to neither publicly confirm or deny something. Out of court, inconsistent statements would be admissible as an exception to the hearsay rule, counselor. You may be correct, but it's not because of your argument or analysis.
If you want people to believe your arguments, then you need to account for the litigation strategy which may be behind the silence. Litigators may not necessarily disclose to you, as outside counsel, their motivations. They hope to survive two rounds to the supreme Court, and eject this case, not cooperate with your theories.
Also, the telecoms have no reason to press for any immunity when they publicly have the President, DNC, and GOP doing their work for them. Whether you do or do not believe Bush has no relationship to whether the telecoms do or do not have indemnification already; or whether there is or isn't an agreement. That's a red herring.
You're the one misreading the editorial. Rockefeller was discussing the original options which the President ignored, or did not use. You may want to read his larger editorials. Regardless, you're failing to connect the reasons for not passing indemnification with the supposed private agreement. Are you suggesting that the Congress knows about the agreement, and is pretending to not agree for unstated reasons? Indeed, let's take that confusion to its logical conclusion.
As to Qwest, you're arguing out of ignorance and claiming that because they did or didn't do something, that that means we cannot trust them. This has little bearing on whether the silence of those involved is or isn't linked with your theory; or the opposite, to neither confirm nor deny something. Yet, you're making the same arguments when it comes to the telecoms silence. You can't have it both ways. Surprisingly, you want to invoke the "We don't know for sure" doctrine as a basis to say with certainty that "silence" means something, but not something else. Your argument fails because you have a double standard.
You have failed to persuade that the "telecom silence" means what you're saying. They may have a secret agreement, but its not because of silence or your argument, counselor. You're free to raise th points, but don't ask people to believe your conclusions when you fail to consider the opposite: Silence may be part of a litigation strategy.
As to your specific assertions, they're arguably, allegedly frivolous. You incorrectly assert that the President's denials do or do not mean anything. The President was the one who said that he wasn't illegally doing something, then we find out it was a lie; and that he wasn't getting warrants. You're not making an argument, but more of a smokescreen which is unconnected from your premise: That silence means there's an agreement. Again, you're arguing over something that doesn't support your position; and you haven't considered the opposite view that it may be part of a litigation strategy, counselor.
As to wheher Rockefeller's claims were or weren't connected with the original "agreement" or subsequent FISA updates: You're not making the point. Whether the President has or hasn't indemnified the telecoms is, in your theory, linked with their silence. Again, you haven't made the case.
As to your speculations about the Qwest "deals" during prosecutions, this has nothing to do with your original claim that "silence means a deal exists." You haven't addressed the issue: Why Qwest CEO rejected cooperation, but hasn't been prosecuted for that failure to cooperate. You're bringing up an irrelevant prosecution. Again, you're not making the case that "silence means there is a deal". There may be, but not because of your argument.
You should be commended for sharing your theory. You should also accept that your theory, if true, is at odds with the public actions of Rockefeller, Qwest, and the President. Indeed, your theory would rightfully expand the questions to ask why, despite an agreement, the President is invoking the "telecoms" when the real issue is his personal civil liability.
You're appealing to ignorance on this:
Qwest didn't participate. Are you suggesting that for "something other than a legal objection" they didn't participate? That defies reason. You're appealing to mystery, ignorance; but failing to connect [a] your "silence means there is an agreement" with [b] your response about Qwest. Another defect with your argument.
Do not ever issue me a "warning", counselor. You're out of line. Go read your attorney standards of conduct. This statement does not impress, nor reflect well on your profession, or you:
Here's a warning for you counselor: Any excuse to get you disbarred will be fully asserted to the maximum extent the law permits. One defense to defamation is one publicly stating their views are personal opinions. It may be defamation to question your competence and professional suitability to continue practicing law, but that does not bind anyone to have confidence in your analysis.
It appears your peers in your profession have lazily sat around, made excuses for illegal warfare; yet you and others have done little but whine about silly legal theories to explain away litigation strategy. Here we are in 2008, seven years after the first abuses were reported by the JAGs, and we have the likes of you asking we believe "silence means something but not something else." There has been nothing stopping you and your peers in the legal professional from openly challenging the ABA; nor in demanding a direct legal challenge to have your peers in the White House, DOJ, and CIA disbarred.
Your argument is premised on the "silence means something." Thank you for opening the barn door. Indeed, your collective silence could be construed to be that there is an agreement within the legal profession to not adequately self-regulate; and that there is a private agreement among legal counsel to not enforce the laws of war against your peers. Congratulation, your "silence equals an agreement"-argument, taken to the extreme could implicate you and your peers in the legal community as being complicit with war crimes. That would certainly be a reasonable line of inquiry, counselor.
If you are going to argue "silence means there is an agreement" between the telecoms and the US government, then the same must be considered: To what extent the silence by the legal community on issues of war crimes is evidence of an agreement between lawyers in your profession and the US government to not fully enforce the laws of war. All demands that you've made that we "consider" your argument must be matched by a mirror-line of questions into the alleged illegal agreement your peers have collectively supported to not timely enforce Geneva against your peers.
You cannot claim "attorney-client privilege" on matters you've openly commented on. That is the same reason why the telecoms may be silent: To not open any of the barn doors. But you've publicly commented. Congratulations, counselor! Using your argument, you've boxed yourself into being correctly questioned as an alleged war crimes defendant. You want people to take you seriously? Then let the war crimes investigation enter your office, and review what you've been doing or not doing since 2001 to explain why there's been no peer reviews to the DC bar based on the "silence must mean there is an agreement"-theory. How does it feel to be the target of a public inquiry into whether you personally were or were not party to an agreement to not enforce the laws of war? It's started, counselor.
Are you aware of an agreement in the legal profession to not enforce the laws of war?
To what extent is your alleged silence on various issues since 2001 evidence of your alleged agreement to not enforce the laws of war?
To what extent are you personally aware of secret agreements to not fully meet the attorney standards of conduct, and not disclose this evidence to a state or federal disciplinary board or investigator on issues of alleged war crimes?
What is your specific solution to the "silence must mean there is an agreement": Do you propose something novel, other than the existing options which have not been asserted, outside impeachment?
Have you demonstrated that you have fully asserted your oath, as an attorney, to defend the Constitution against domestic enemies who have made agreements to not enforce the laws of war; or shall we enter into evidence and public discussion your "silence" on this as evidence that you have an agreement to not fully meet your legal obligations?
Do you have a good reason why you should not be investigated, questioned, and reviewed over alleged agreements to be silent about agreements not to enforce the laws of war in the legal profession; or should we enter into evidence your non-response as evidence you have an agreement with others to block investigations into your alleged misconduct in re the alleged illegal agreement to be silent, not enforce the laws of war, and not review your peers in your profession?
Do you have plans to hire a private attorney to defend yourself before international tribunals over alleged agreements you and others in the legal profession may be aware related to plans to not enforce the laws of war; or block investigations into attorney misconduct in not fully defending the US Constitution and treaty obligations under Geneva; or should we enter into evidence your silence/non-response on this as evidence that you do have an agreement to not fully enforce the laws of war?
What reasons have you documented for not fully supporting all lawful options to remove all obstacles to impeachment; or should we enter into evidence your silence on this issue as evidence that you and others have an alleged agreement not to enforce the Constitution, and you have an alleged agreement to not fully assert your legal obligations as an attorney?
If neither impeachment nor prosecutions are used to enforce the laws of war against your peers in the legal profession, how can you argue you are part of a "self regulating" organization; or immune to outside oversight; or should we enter into evidence your silence as "proof" that there is an agreement to only create the illusion of self governance, despite alleged agreements not to fully assert your oath as an attorney to enforce the US Constitution and US treaty obligations under Geneva?
What is your view of the "silence means there is an agreement" as an excuse not to strip the legal profession of self-governance, and impose outside oversight who shall use the "silence means there is an agreement"-argument to intrude into your profession, and deny your profession any expectation that they shall remain a self governing organization; or shall we enter into evidence your silence as evidence of your alleged agreement to create the illusion of competence, when a reasonable fact finding might conclude you are not fit to pratice law or appear before any court of law?
March 5, 2008 2:36 PM | Reply | Permalink
There are two attorney names that associate with your publicly provided information, freely available on the internet:
To be clear we're not alleging that either of these attorneys listed has engaged in any criminal conduct or violated any standards of conduct; only asking whether the attorney allegedly posting the information is either of these attorneys located in NC or NJ.
Do you have any association or relationship with either of these attorneys; or is the name in your pubilcly disclosed email not the name that you've allegedly asserted:
Or are you "someone else"?
Question Who would you prefer be asked to review your allegedly reckless statements: The NJ or the NC State Disciplinary boards?
If you have information about agreements the telecoms have provided or made with the US government, then it is your responsibilty to provide that evidence; otherwise, there's little reason to have confidence in your assertions. If you would like to provide some information that may justify confidence that there is "no agreement between any US counsel that you have agreed to not enforce the laws of war," feel free to disclose that information.
March 5, 2008 10:20 PM | Reply | Permalink
The issues, for now, on the table are the allegations you're making; and to what extent those have or have not been adequately couched as personal opinions, statements of law, or something else raising questions about your ability to keep client confidences.
Senior partners have a superisory responsibility. When someone posts on the internet, and their statements can be traced to a specific email, and there are questions about the disclosures you've made, a reasonable person might conclude:
1. Subpoena
The email you've sent, an openly referred to, could be subject to discovery;
2. Disclaimers
Whether the email you've provided did or did not adequately include various disclaiers; or whether it was sent from your law firm, in violation of your company policies [are you spending official hours working on non-official business, unrelated to billable hours]
3. Client Audit Rights
Once clients review their billing statements, and examine the work products you've provided; and they compare those with the email times that you've sent, the question turns: Are you billing clients for work unrelated to your practice area?
4. Alleged Malpractice Risks
Your law firms insurance premiums are a function of whether your firm does or does not have an adequate practice risk mitigation plan in place; whether the supervisory counsel are or are not aware of what you are doing; or whether you are spending your personal time, at home, conducting business outside your exertise.
If you would like to continue "warning" the public about anything, start putting your name, as an attorney, on your public assertions. Otherwise, the fact that you are an attorney doesn't mean anything. You're hoping to enjoy the best of both words: The status as an attorney linked with a publicly disclosed email; but the claim that you can warn the public, but be beyond examination and review because of your "anonymity". That will not work.
The public, the clients, the people who "depend" on counsel, are not required to meet standards of conduct. You work for us. And we can, without notice, revoke contracts, fire you, and put you on the "do not hire"-list. Your income is a function of respecting clients, not in asking the public to accept your argument on blind faith. When you start making coherent arguments, and act professionally as an attorney, the public might stand down in the now-started effort to review your online conduct, and where appriate open a disbarment investigation.
It is a shame the public has to know the legal community's stadard of conduct, yet your profession would ask that it remain self-regulating. Those days are numbered. Got that, counselor?
What You Need To Do
Disclosure the name of the firm you previously provided telecom legal counsel to;
Identify, by name, the law firm you work for;
Identify the state you are licensed to practice law;
List your comlete name, and the full accreditation you have from which ABA-certified law school;
Explain in detail why you, as an attorney, are openly disclosing details of work you provided to previous clients; and are making comments that can be linked to your name, your law firm, and other clients;
Provide a justification why you, as an attorney, should be trusted to maintain client confidence, when it appears you are disclosing details of work products for other clients. It appears you've opened the door to discovery into your preious relationships with other counsel; and may have disclosed attorney-client sensitive information. Why?
Muckrakers
I'm not sure what this lawyers' issue is, but they appear to enjoy disclosing information about previous work. If you were a client, and you heard your attorney on the internet disclosing information like this, would you like this; or would you not care? Clients pay attorneys money to keep confidences; not broadcast them on the internet.
This attorney has allegedly disclosed their email, which can be traced to a specific work product they've sent through the email. There are many questions which could warrant a disbarment investigation, and raise substantial questions about the ethics, suitability to practice law, and legal malpractice insurance risks. The attorney that is allegedly doing this has a responsibility to report peer misconduct and illegal activity; and also defend the Constitution against domestic enemies.
With the above issues on the table, it appers there is a reasonable basis to question the motivations, this late in the game in 2008, for this attorney to discuss these issues; but, appears to have no explanation for what they were doing since 2001:
- Was there a report of evidence provided to the ethics/ attorney disciplinary board in re attorney misconduct, war crimes, or alleged attorney agreements to agree to violate the law with assurances from the US government that no action will be taken?
- Was this attorney involved with an agreement to not do what he should have done?
- If there have been allegations by this attorney that soeone in the telecom legal services industry has illegally done something, has that complaint been forwarded to the apprriate disciplinary board?
- Why is this attorney discussing these issues in pubilc, and not rivately raising these legal issues with his peers in the legal services industry?
- Is this attorney pubicly commenting on these issues because they have no confidence in the "self regulatory" mission of the state disciplinary boards; what efforts have they made to work within the system, as opposed to post their implicit concerns about their peers on the internet, and permit those comments to be traced to them as an attorney with a secific law firm?
Your legal profession is the one Americans once relied on to defend the Constitution. From this perspective, it appears you and your peers have fallen down on the job, not timely defended the Constitution, and have not worked as a legal industry to timely ensure these alleged war crimes, Constitutioanl violations, and other alleged attorney misconduct was adequately challenged, disciplined, and remedied. This is not impressive, and warrants public discussion:
- To what extent must the oversight for the legal services industry be modernized to include outside auditors, and public oversight;
- TO what extent must attorneys be stripped of privileges;
- What is to be done when counsel allegedly discloses information about previous client work roducts;
- What hapens when counsel on the internet appear to abuse anonymity to dissuade reasonable public discussion about their weak legal arguments they've provided?
March 5, 2008 11:11 PM | Reply | Permalink
This issue of Competence relates to the communication, and other activities you and others are alleged to engage:
- Are you using your law firm's time cards to engage in personal business unlreated to your billings;
- Conversely, are those you're allegeing are engaged in agreements, not adequately disclosing material information to opposing counsel?
March 5, 2008 11:23 PM | Reply | Permalink
Fees:
- Have you disclosed all time you've billed to your client that you've actually spent working on non-official business?
- Was the fee arrangement/billing in writing; did you and your peers at your law firm make a material misrepresentation related to your billing hours to any of your clients?
March 5, 2008 11:25 PM | Reply | Permalink
It also appears you're making allegations related to secific attorney-client work products. This relates to the issue of confidentiality.
- How is the disclosure of this information related to "preenting" illegal activity?
- If the alleged agreement does not relate to any illegal activity, why are you disclosing client-related information?
- Is it your position that you can disclose this client information without seeking permission from your clients?
March 5, 2008 11:27 PM | Reply | Permalink
Let's consider the issue of conflicts:
- Are you currently representing any telecoms?
- Are any telecoms you previously worked with an adversarial client, subject to any adverse consequences based on your disclosures?
- Have you clearly identified which clients you have worked for in the telecom industry; and made these known to the public reading your comments?
- Is it your view that you can use information gleaned from telecom-clients, but not disclose that telecom's name to the adverse parties in the public reading your commentary?
March 5, 2008 11:29 PM | Reply | Permalink
Let's cosider the timing of your email to the various blogs you've provided. There are issues of fee arrangements. You've alleged that the telecosm have an agreement with the government.
- Do you have any fee relationships with emptywheel, FDL, or any other blog?
- Do you get any funds from advertising from any blogs?
- Have you disclosed the fees you may be receiving for your work products?
- Are you using your law firm's time to engage in personal writing for fees you have not disclosed to partners at your law firm?
- Why did you suddenly write an email to the WaMonthly; what was the urgency?
- Do you have any planned book deals, residuals, or writing contracts that you would hope to generate publicity related to these allegations related to your previous work with the telecoms?
- Have you been contacted by any party to provide information for a fee to any Congressional committee, grand jury, or other agency?
- Have you disclosed those fees for travel/speaking, if they have been received?
March 5, 2008 11:33 PM | Reply | Permalink
One rule relates to malpractice:
The allegations you're raising using an anonymous name, but linked with an email, do raise questions about increased law firm malpractice risk and disclosure.
- Have the writings you've disclosed on the internet been adequately disclosed to the practice management group within your firm so they can assess the malpractice risk?
- To what extent have former clients been given notice of your writings related to your prior representation?
- Are there any settlement offers you have rovided that you have not disclosed related to any alleged malpractice; if not, what were the terms of the non-disclosure of those settlement agreements?
March 5, 2008 11:36 PM | Reply | Permalink
Let's talk about the duties you as counsel have when the actions of the board or CEO conflict with legal requirements or an attorneys advice.
- Is it your position that when you issue an opinion, and the CEO of Qwest were to cotradict that, that that is "not" a legal issue?
- What happens when the board of directors disagrees with you, and decides to proceed with illegal activity: Your position?
March 5, 2008 11:39 PM | Reply | Permalink
Let's talk in generalities about the model rules. We are not sure which state you're in, so for the sake of discussion, we'll refer to the DC rules.
1.2 is an intersting one. If, as some might allege, the telecoms have been granted immunity, but not disclosed that to plaintiffs, the question before the court:
- Has legal counsel engaged in fraud;
- Have counsel not withdrawn as required;
= Have counsel assisted telecoms in illegal activity, and not removed themselves?
March 5, 2008 11:20 PM | Reply | Permalink