BUSHCO & AT&T Rewrite Law To Protect Themselves

[kpete]

“Or His Designee”
By: emptywheel Saturday March 8, 2008 9:01 am

In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.
http://energycommerce.house.gov/Press_110/110-ltr.101207.TI.ATTrspto100207.pdf

The same principle--that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive--underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General's judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit.

Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

DO YOU SEE THE DIFFERENCE?: AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you're wondering, 2518(7) doesn't say anything about "designees" either.)

Of course, we know why AT&T has unilaterally rewritten the law. That's because, as SSCI kindly told us, AT&T conducted its illegal wiretap program based on the authorization of Alberto Gonzales, then White House Counsel.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. http://intelligence.senate.gov/071025/report.pdf

more at:
http://emptywheel.firedoglake.com/2008/03/08/or-his-designee/

[Vincardog]

1. And the wheels on their little bus are falling off.

[bobthedrummer]

2. AT&T, Ameritech, WPP, Microsoft... all those telecom DLC supporters help the Decider too-

and then we, the people are pushed further towards what happens to citizens when empires fall.

[TechBear_Seattle]

3. Buchco and AT&T aren't doing squat. CONGRESS passed this law

More specifically, a Congress where Democrats control both houses. But of course, they are blameless because they are Democrats.

[PSPS]

4. Again with the "beginning soon after September 11, 2001" lie

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

This criminal wiretapping behavior began well before 9/11/01. It started shortly after bush was installed, in February 2001.

[jlacivita]

5. it does mention designees

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
(a) an emergency situation exists that involves—
(i) immediate danger of death or serious physical injury to any person,
(ii) conspiratorial activities threatening the national security interest, or
(iii) conspiratorial activities characteristic of organized crime,
that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and
(b) there are grounds upon which an order could be entered under this chapter to authorize such interception,

I'm wondering if Gonzales qualifies as an "investigative officer"

The real problem is that they're trying to grant AT&T immunity which could apply to things beyond complying with the whitehouse's request. If all they did was comply with the Whitehouse in a way that is legal according to the law, there is no need to grant immunity, which would prevent them from being prosecuted for any crimes committed in order to comply with the request.