There have been many changes in the Government in the past 6 months. Emptywheel at TNH, who I believe to be one of the most insightful bloggers on the web, has now put together many pieces of a puzzle that indicates what the changes may mean.
Adding to the narrative, we must also consider the indications of upcoming Bush Administration legislative priorities, Government behavior in Warrantless Surveillance suits, and a new understanding of the mechanism and scope of the Warrantless Surveillance Program. In consideration of all of the evidence, we can surmise that actions of Bush Administration DOJ may have exposed US telecommunications companies to liability, potentially from every single person in the United States who owns a phone or connection to the internet. It is increasingly evident that a principle intention of Bush's remaining days in office is to protect major TelCos from the liability that Administration decisions created.
The Scandal
The Bush DOJ has been wracked by scandal: Politicization of Prosecutions, unwarranted firing of US Attorneys, gutting civil rights protections, and participation in the erosion of Civil Liberties and an Executive Power Grab. In addition to the fact that the corruption of the DOJ has forced numerous career and principled political appointees from the DOJ, investigation of these scandals has resulted in the resignation of most of the highest echelons of the DOJ, including the Attorney General, Alberto Gonzales.
The Unusual Response to the Scandal
The damage from Bush's maladministration of the DOJ is clear. A reasonable Administration with the best interests of the country in mind would seek broad bipartisan help in restoring the DOJ to a level of function and integrity that adequately reflects its mission: commitment to respecting the Constitution and upholding the laws of our country. But alas, this is the Bush Administration. Instead, we have a perplexing sequence of events that may offer an indication of Bush's priorities in cleaning up the mess in the wake of the DOJ Scandals, and it is not to restore Constitutional principles and Rule of Law. Indeed, it appears that the principle goal of the Bush Administration is to minimize the fallout to TelCos for their participation in the Warrantless Surveillance Program when it was illegal.
The TelCo Liability Exposed by DOJ Malfeasance
How big is this liability the TelCos might face? Well, as I and others have speculated, the Warrantless Surveillance Program appears to have the capability to "sift" or "mine" data from every electronic communication that travels through cables on US Soil. Important clues to the capabilities of the program are inferred from the language of the Recent FISA update Bill- see here. In short, it is increasingly evident that the major US TelCos enabled the surveillance of every single domestic communication, or cannot prove that they did not.
So in light of the possibility that The Program monitored the communication of every American with a phone or a web connection, this means that nearly all Americans may have standing to participate in a lawsuit should any plaintiff achieve success in showing standing and damages from the program. Since Bush's Unitary Executive theories generated the flawed OLC memos that authorized The Program, Bush and the stalwarts of Unitary Executive Ideology certainly share AT&T's concern about their liability exposure.
The Evidence
I believe the timeline below indicates the Administration priorities, and suggests that Bush's interests in restoring Justice to the DOJ may take a back seat to protecting TelCos from political and legal liability exposure.
9/11/01: WTC destroyed by Terrorists
October 2001: Dick Cheney and David Addington work with OLC lawyer John Yoo to draft memos that broadly authorize unlimited Presidential action in fighting the "War on Terror". This includes a Warrantless Surveillance Program.
June 2003: John Yoo departs OLC.
October 2003: Jack Goldsmith appointed OLC head and has immediate concerns about the legal basis of Yoo's prior memos.
March 2004: Goldsmith and his Deputy, Patrick Philbin, argue that DOJ should no longer sign off on the Warrantless Surveillance Program. Their legal analysis is supported by James Comey and John Ashcroft.
March 10, 2004: Acting AG Comey refuses to approve the Warrantless Surveillance Program. Card and Gonzales are thwarted in their efforts to get an approval signature from critically ill Ashcroft.
March 11, 2004: The Warrantless Surveillance Program is reauthorized by President regardless of legality and without DOJ signature.
June 2004: Goldsmith withdraws John Yoo Torture memos and resigns.
January 2005: Alberto Gonzales becomes AG.
December 2005: NY Times breaks NSA Warrantless Wiretapping story. The article suggests many American's communication is being monitored.
January 2006: President defines "Terrorist Surveillance Program" as including Foreign-Domestic communications.
February 2006: AG Gonzales testifies on TSP, notes that The Program was not controversial.
2006-2007: Government Demands secrecy and classification of all information in court cases pertaining to Warrantless Surveillance.
Simply confirming or denying that such surveillance takes place could embolden terrorists by letting them know which forms of communication are monitored and which are not, Assistant Attorney General Peter Keisler [Now Acting AG] told Judge Vaughn Walker of the U.S. District Court for the Northern District of California.
2006-2007: Former WH lawyer moves to leadership position at AT&T.
former Associate White House Counsel Brad Berenson (who also happens to be Kyle Sampson and Susan Ralston's lawyer) has taken over for Keisler and is working on the AT&T case, among other things.
November 2006: Democrats secure majority in House and Senate.
December 2006: US Attorneys fired= Prosecutor Purge.
January 2007: HJC and SJC investigations of Prosecutor Purge begin.
May 15, 2007: James Comey testifies in front of SJC about the March 10, 2004 Hospital Signature Mission, and the controversy within the Government over the legality of the Warrantless Surveillance Program that initiated it.
June 13, 2007: Bush installs Key AT&T lobbyist, Ed Gillespie, as White House Counsel, and expand that role to include the political activities of departing Karl Rove.
July 26, 2007: FBI Director Robert Mueller testifies Before the HJC and acknowledges that the 3/10/04 confrontation was about the Warrantless Surveillance Program. This contradicts AG Gonzales' testimony.
July 31, 2007: Director of National Intelligence Mike McConnel sends a letter to Senator Arlen Spector that acknowledged undisclosed activities beyond the warrantless surveillance of e-mails and phone calls that Bush confirmed in December 2005.
August 4, 2007: The FISA Update Legalizes Government demands for TelCo participation in warrantless surveillance.
August 27, 2007: Gonzales Resigns as AG.
September 17, 2007: Bush installs one of AT&T's former key attorneys, Peter Keisler, as acting Attorney General. Keisler has government experience thwarting cases against big Corporations:
Keisler was one of the three political appointees fingered by a career prosecutor who claimed they repeatedly ordered her to take steps that weakened the government's racketeering case against tobacco companies.
Coming Soon, Fall 2007: Bush plans to seek legislative immunity For TelCo action in Warrantless Surveillance.
The Bush administration is urging Congress to pass a law that would halt dozens of lawsuits charging phone companies with invading ordinary citizens' privacy through a post-Sept. 11 warrantless surveillance program.
Summary
I think it reasonable to consider that because the Administration is so keen on including AT&T representation in the highest levels of government (AT&T Lobbyist Gillespie as WH counsel and political director, AT&T Lawyer Keisler as acting AG), is committed to absolute "secrecy" about every aspect of Warrantless Surveillance cases now in court, and is committing to an upcoming legislative battle to immunize AT&T and other TelCos from liability, then it likely means that the potential liability is so big that it could potentially destroy any company that was exposed.
Based on what little we know about the Warrantless Surveillance Program, potential plaintiffs may include every American with a phone or a web connection. Clearly, the recent behavior of the Administration suggests potential liability on a massive scale. On one level I share Bush's terror over the potential destruction of the TelCos- I am hooked on dKos and "Curb Your Enthusiasm".
On the other hand, Bush's priorities appear fundamentally wrong. Rather than repair the damage his policies created at the DOJ and benefit all Americans, Bush's priorities appear to be to protect private corporations from the damage his Unitary Executive illegalities created.
It certainly appears that TelCo protection is driving his legislative and appointment priorities, and as emptywheel noted at TNH, the unexpected, stealthy switch of former AT&T lawyer Peter Keisler for Paul Clement punctuates the suspicion. Certainly congress needs to investigate these developments in detail and should absolutely not consider TelCo immunity until wrongdoing at the DOJ has been explored fully. We should continue to support congressional investigations and urge for a Special Prosecutor with a broad mandate to investigate prosecutor firings, Hatch Act violations, politicization of prosecutions, and reauthorization of the Warrantless Wiretapping Program despite OLC and DOJ refusal to approve the program. This mandate should also include exploration of the relationship between AT&T and this Administration in light of the Warrantless Surveillance Program and the recent developments in response to the implosion of the DOJ.