‘Betray’ the NSA at Your Own Peril

It’s important to not resist the NSA when it wants something, especially if you depend on them for key contracts. From the Washington Post:

Nacchio was convicted of selling of Qwest stock in early 2001, not long before the company hit financial troubles. However, he claimed in court documents that he was optimistic about the firm’s ability to win classified government contracts — something they’d succeeded at in the past. And according to his timeline, in February 2001 — some six months before the Sept. 11 terrorist attacks — he was approached by the NSA and asked to spy on customers during a meeting he thought was about a different contract. He reportedly refused because his lawyers believed such an action would be illegal and the NSA wouldn’t go through the FISA Court. And then, he says, unrelated government contracts started to disappear.

His narrative matches with the warrantless surveillance program reported by USA Today in 2006 which noted Qwest as the lone holdout from the program, hounded by the agency with hints that their refusal “might affect its ability to get future classified work with the government.” But Nacchio was prevented from bringing up any of this defense during his jury trial — the evidence needed to support it was deemed classified and the judge in his case refused his requests to use it. And he still believes his prosecution was retaliatory for refusing the NSA requests for bulk access to customers’ phone records. Some other observers share that opinion, and it seems consistent with evidence that has been made public, including some of the redacted court filings unsealed after his conviction.

Not only was Nacchio charged, but he was unable to mount a full defence in a public court on the basis that part of that defence depended on revealing classified information. That information, itself, concerned the CEO’s unwillingness to engage in what his counsel advised were illegal activities.

You don’t need secret courts to undermine the course of justice, or secret investigations. All you really need to do is establish that some evidence is too secret to be used in your defence. In effect, by precluding a full-throated defence of the accused the very legitimacy of the open court system is undermined.