Dick Cheney, Pre-9/11 NSA Spying, and Retaliation

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Vice President Dick Cheney has been caught in yet another lie recently, this time relating to his claim that warrantless surveillance could have helped the Bush Administration prevent 9/11. Cheney’s June 16, 2013 appearance on Fox News, widely reported on throughout the media, contained this chestnut:

“Now, as everybody has been associated with the program said if we had this before 9/11, when there were two terrorists in San Diego, two hijackers able to use that program, that capability against the target, we might have been able to prevent 9/11. If we had been able to read their mail and intercept those communications and pick up from the calls overseas the numbers here that they were using in the United States, we would than probably have been able to thwart that attack.”

As it so happens, the Bush Administration did have the ability to read the mail and intercept the communications of terrorists and ordinary Americans, because it started its warrantless surveillance program a full seven months before 9/11.  According to court records, QWest CEO John Nacchio claimed the NSA asked for access to the communications of QWest customers on February 27, 2001, but he and other senior QWest executives declined to allow the NSA the access it sought.

Nacchio sold more than $100 million in QWest stock later that year, and he claimed that he expected QWest’s revenues to be sharply higher than they were due to secret NSA contracts that were rescinded in the wake of his refusal to allow the access to customer communications the NSA sought.  By 2007, Nacchio was faced with 42 counts of insider trading, after being forced to resign by the company’s board of directors in June 2002.  That month, the federal government had launched an investigation into alleged accounting fraud at QWest.

While his defense team mentioned his knowledge of secret NSA contracts before the trial, Nacchio’s attorneys never called him to the stand to testify out of concern for the cross-examination he might face. The contracts were therefore never brought up during the trial.  However, Nacchio did attempt to depose witnesses and present the defense during the trial, only to be turned down by Colorado federal district court judge Edward Nottingham.

Nottingham’s refusal to allow Nacchio’s defense to move forward on the NSA angle is central to his appeal to the 10th Circuit Appeals Court. James Payne, QWest’s government liaison, confirmed the meeting and Nacchio’s refusal to allow the government access to QWest’s customer communications without legal authorization on the advice of QWest’s legal counsel.  When the NSA could not break the impasse, they withdrew the offer of work on a project named Groundbreaker, which was ostensibly an IT services contract.

Groundbreaker was a 10-year contract worth $2 billion.  In furtherance of Groundbreaker, AT&T allegedly built a duplicate network operations center of its Bedminster, New Jersey facility for the exclusive use of the NSA.  The press release for Groundbreaker, which was ultimately awarded to Computer Sciences Corp. and a dozen partners, outlines a contract awarded in August 2001 that would become fully operational by November 2001. The listed partners of CSC include the following companies: General Dynamics Corp., Keane Federal Systems Inc., Omen Inc., ACS Defense Inc., BTG Inc., CACI International Inc., Compaq Computer Corp., TRW Inc., Windemere, Fiber Plus, Verizon and Superior Communications. CSC’s partnership with Northrop Grumman subsidiary Logicon was known as Eagle Alliance.

Groundbreaker would be extended in 2007, and its value would grow to a stunning $5 billion.  This, despite the fact that in 2006, the Baltimore Sun reported that NSA projects like Groundbreaker and Trailblazer were years behind schedule and hundreds of millions of dollars over budget.

Nacchio’s assertion that the contract was potentially a blockbuster for QWest would seem to be warranted by the $5 billion worth of the contract between 2001 and 2007.  Moreover, his claim that NSA warrantless surveillance under the Bush Administration began months before 9/11 is bolstered by a second class-action lawsuit filed on behalf of telecom customers.  The lawsuit, Mayer et al v. Verizon Communications Inc., alleges that at least seven months before 9/11, AT&T began development of its duplicate network operations center:

Within eleven (11) days of the onset of the Bush administration, and at least seven (7) months prior to the attacks of September 11, 2001, defendant ATT began development of a center for monitoring long distance calls and internet transmissions and other digital information for the exclusive use of the NSA.
The center was put into development by ATT following a proposal by the NSA for the construction and development of a network operations center identical to ATT’s own network operations center located in Bedminster, New Jersey for the exclusive use of the NSA.

The NSA proposal was accepted by the ATT sales division and referred to ATT Solutions, an ATT project development division situated in Florham Park, New Jersey.

The NSA proposal sought construction of a duplicate ATT Network Operations Center for the exclusive use of the NSA with the capacity to monitor all calls and internet traffic placed on the ATT long distance network, as well as ATT’s wide area, fiber optic, T-1, T-3, T-5 and high-speed data networks.

Such a data center would also enable the NSA to tap into any call placed on the ATT network and to monitor the contents of all digital information transmitted over the ATT network.

The project was described in the ATT sales division documents as calling for the construction of a facility to store and retain data gathered by the NSA from its domestic and foreign intelligence operations but was to be in actuality a duplicate ATT Network Operations Center for the use and possession of the NSA that would give the NSA direct, unlimited, unrestricted and unfettered access to all call information and internet and digital traffic on ATT’s long distance networks.

Said data center would enable the NSA to tap into any phone line and to monitor any digital transfer of information on ATT’s networks including voice telephone calls, facsimile transmission and all internet traffic.

Such project was in development not later than February 1, 2001, within eleven (11) days of the onset of the Bush Administration.

The NSA program was initially conceived at least one year prior to 2001 but had been called off; it was reinstated within 11 days of the entry into office of defendant George W. Bush.

The NSA program was code-named Pioneer-Groundbreaker and was also known at ATT Solutions division as GEMS (Groundbreaker Enterprise System).

International Business Machines Corporation (IBM) was one of the parties working with ATT and the NSA to develop the monitoring center and IBM personnel participated in meetings with ATT and NSA officials in the development of the monitoring center.

Among the purposes of the Pioneer-Groundbreaker project was the storing and monitoring of all phone call information coming across ATT’s networks; by means of this program NSA sought to duplicate all of the phone call information that came across ATT’s networks for real-time, contemporaneous analysis or, alternately, for downloading and later use by the NSA.

The proposed project was to be a storage entity modeled on ATT’s network operations center in Bedminster, New Jersey, and would have the capability to monitor all data and traffic that came across ATT lines, including ATT traffic and traffic originating from other carriers that used ATT lines or that sent calls to ATT customers.

The NSA was seeking to duplicate the ATT network operations center and sought by means of the Pioneer-Groundbreaker program the ability to monitor all traffic coming across ATT’s network.

The contact list for the Pioneer-Groundbreaker project consisted of a minimum of 35 ATT employees dedicated in whole or in part to the Pioneer-Groundbreaker program.

An ATT Solutions logbook reviewed by counsel confirms the Pioneer-Groundbreaker project start date of February 1, 2001.

The ATT Solutions logbook confirms the dates and transmissions of copies of ATT, IBM and NSA e-mails setting forth the existence of the Pioneer-Groundbreaker program; said e-mails remain in the custody, possession and control of ATT, IBM and NSA.

Said logbook was maintained pursuant to ATT Solutions policy in the regular course of business by telecom engineers at ATT Solutions.

Counsel have been informed of the foregoing information by several informants who had direct knowledge or who have received direct admissions by ATT personnel as to the foregoing facts.

If the claims of Nacchio and the plaintiffs in Mayer are in fact true, then Dick Cheney lied about the existence of a secret, warrantless program to intercept, compile, and analyze the communications of ordinary Americans before 9/11.  Cheney’s lie becomes even more egregious when you consider that he later represented the lack of such a program as one of the reasons 9/11 succeeded.  In fact, revelations by Nacchio, the plaintiffs, and whistleblowers like Margaret Newsham and Russ Tice indicate that the NSA was engaged in such surveillance well before 9/11, which raises the question: why wasn’t 9/11 intercepted and prevented?

If Nacchio’s behavior was in fact motivated by his knowledge of a potentially enormous contract, then it would seem to undermine the government’s assertion that he was selling his stock to avoid QWest’s declining fortunes. Such a possibility also raises the question of whether or not the government’s prosecution of Nacchio was politically motivated, and the entire episode places the government’s grant of immunity to telecom companies in a wholly different light: at the time immunity was voted into law, the telecommunications firms would have been engaged in illegal cooperation with the government for seven years.

In fact, Congress passed H.R. 6034 under the presumption that the warrantless surveillance started after  9/11, when many of the 40 or so class action lawsuits alleged that the surveillance predated 9/11.  That means that the Bush Administration, far from pursuing a necessary security measure in the aftermath of a devastating terrorist attack, was already rolling out the warrantless surveillance program in advance of 9/11.  Combined with the warnings of foreign intelligence services, the known existence of a daily memo warning of Bin Laden’s intent to strike within the United States, the existence of the warrantless surveillance program before 9/11 raises the question of foreknowledge.

While Bush officials plead incompetence on the part of the intelligence community, subsequent revelations by New York Times reporter Kurt Eichenwald reveal that the intelligence community did what Eichenwald characterizes as “a spectacular job.”  In other words, the Bush White House had the information they needed to stop 9/11, but they were too busy building a surveillance apparatus that was illegal, unconstitutional, and would require retroactive immunity for the telecommunications partners of the NSA under Bush.

Given the result for QWest, specifically the financial detriments of adhering to the law rather than going along with the NSA’s illegal surveillance efforts, the NSA may have harmed the shareholders of QWest in retaliation against Joseph Nacchio for his refusal to break the law and hand over private customer information.  Nacchio’s prosecution, if the allegations contained within his appeal and the forty or so class action lawsuits against telecommunications companies are to be believed, might be a political witch hunt more suited to Putin’s Russia than the United States.

As time goes on, and the revelations of NSA illegality continue to emerge, the timeline moves further back to precede 9/11.  The inexcusable failure of the Bush Administration to stop 9/11 becomes more apparent as a result.

jay batmanJay Batman is a graduate of the Texas Tech University School of Law, where he attained his J.D. in May 2013.  He completed a B.A. in English with a minor in Political Science at the University of Montevallo in 2002. He is employed with Dustin Stockton Political Strategies, LLC, and presently resides in West Texas with his dog and co-author, Buddy Love – See more at: http://www.libertypulse.com/article/the-inglorious-exploits-of-dear-leader-episode-3/#sthash.YkQ4wmTi.dpuf