Nacchio appeal ripped from pages of Ripley's
By Al Lewis
Sunday, October 14, 2007
Joe Nacchio met with top officials of the National Security
Agency in Fort Meade, Md., on Feb. 27, 2001.
Whatever Nacchio said at this meeting may have drastically
changed his fortunes forever -- or so the former chief executive
of Qwest claims in court transcripts and filings made public
Qwest was expecting contracts to build cyberwarfare-resistant
networks for the government around the globe.
Within a few months of the Feb. 27 meeting, this promised work
began to disappear. And within several more months, Nacchio was
under investigation for securities fraud.
He was convicted in April of illegal insider-trading charges.
In appealing his conviction, Nacchio argues he was prohibited
from presenting a key part of his defense: that the government
took away Qwest's top-secret work and targeted him for
prosecution, because NSA officials didn't like what he said.
So what did Nacchio say?
In redacted documents -- which The Denver Post requested in
court filings of its own -- Nacchio's attorneys reference an NSA
project called "Groundbreaker."
Much of what was said in court about this project has been
blacked out to protect classified information. But one filing
quotes a lawsuit against several major telecommunications
companies (but not Qwest) and the Bush administration for
allegedly spying on private citizens without required court
"At least seven months prior to the attacks of Sept. 11, 2001,
defendant AT&T began development of a center for monitoring
long-distance calls and Internet transactions ... for the
exclusive use of the NSA," the lawsuit reads. "Said data center
would enable the NSA to tap any phone line and to monitor any
digital transfer of information on AT&T's networks. ... The NSA
program was code-named Pioneer-Groundbreaker."
Did the NSA want to install a Groundbreaker at Qwest? Did
Nacchio just say no? And is this why the government pulled back
its business from Qwest and targeted him for prosecution?
These questions were never raised in Nacchio's trial because the
answers are likely classified. In closed pretrial hearings,
Judge Edward Nottingham ruled that Nacchio's attorneys could
present this story but would have to substitute different names
to protect the identities of four secret agencies involved.
Instead of the NSA, for instance, witnesses would have to say
the ABC or the DEF.
"That's as meaningful as the alphabet soup we've got now,"
Nacchio's lead attorney, Herbert Stern, argued that the story
wouldn't ring true to a jury if he couldn't name names.
"We're entitled not only to tell our story but to tell it in a
credible way," Stern said. "If we have holes all along the way,
like Swiss cheese, that's not very persuasive to a jury."
The indictment had already put Nacchio's credibility at issue,
Stern argued. His story would simply not be believed if it
lacked specifics. "They know he's accused of a crime," Stern
said. "And, you know, a man who will steal will lie."
Stern even wanted to depose Richard Clarke, former head of
Homeland Security. But when Nottingham limited what Stern would
be allowed to present, Stern dropped this whole line of defense.
Prosecutors have called Nacchio's claims lies. There may be
more court documents released in days to come where their
arguments are detailed.
It will be interesting to see what the appellate court makes of
this. For his part, Nottingham wasn't impressed.
"The fact that there was a (BLANK) that permitted the government
(BLANK) is of very marginal relevance to your defense,"
Nottingham said, according to one redacted transcript.
The judge also seemed incredulous that secret government
agencies can order up hundred-million-dollar telecommunications
networks, or set up secret monitoring stations, on a whim. The
claims, after all, sound like they're about a totalitarian
regime with no Constitution.
"There is a quality about this that is almost fictional,"
Nottingham said. "Do these things really happen without
congressional oversight? ... With large pots of money that
nobody in the Congress really appropriates to a specific
program? ... Do they really occur with this little control? ...
Do we do things like this on a handshake basis without any
"Your honor summarized it perfectly," said Stern.
Al Lewis' column appears Sundays, Tuesdays and Fridays.
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