Did the Senate Intelligence Committee Disclose Key Evidence of Telecom Illegality?

It sure looks like it. Empty Wheel highlights this important and largely overlooked passage from the Senate Intelligence Committee report that accompanied its proposed FISA bill:

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. [my emphasis].

In other words, one of the certifications provided to the telecoms (presumably the one issued during the period in 2004 when James Comey refused to sign off on the program) was signed not by the Attorney General, but by then White House Counsel Alberto Gonzales.

Why does that matter? Well, as Empty Wheel explains, under the current law, 18 U.S.C. § 2511(2)(a)(ii), telecommunications providers are permitted to provide information and assistance to the government only if they are 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

And as you've probably already guessed, the White House Counsel is not one of the people specified in section 2518(7), which includes the Deputy Attorney General, the Associate Attorney General, and various state law enforcement officials in the case of a state-related investigation.

Why couldn't the Bush administration get the Attorney General, the Deputy Attorney General, or the Associate Attorney General to sign the certification? Because they all thought the program was illegal and were prepared to resign over it. That's why.

So, unable to get any of the proper people to re-certify the program, the Bush administration appears to have simply provided the telecoms with a facially defective certification. That means that for at least a period of 60 days, the telecoms were providing information to the government without a court order and without a valid certification. Those who have been following this issue closely have long suspected that this was the case, but the Senate Intelligence Committee has confirmed it in no uncertain terms (though nowhere in the report does the committee acknowledge the significance of this fact).

I doubt that the significance of this disclosure was lost on the plaintiffs' attorneys in the various lawsuits, however. As I write this, they are undoubtedly discussing how best to utilize this new and valuable piece of evidence.