Justice Department Quashes Wiretapping Inquiries

By Onnesha Roychoudhuri, In These Times. Posted November 23, 2006.

Though Maine resident Doug Cowie just celebrated his 75th birthday in October, it was only this past January that he retired from the Maine Public Utility Commission (PUC) where he worked for 18 years. It would be easy to think of Cowie as an innocuous grandfatherly type -- particularly after his response when I told him some of his e-mails ended up in my spam folder: "Your what folder?" -- but he is one of a growing number of Americans who are acting, in lieu of Congress, as the only check and balance on the Bush administration's domestic spying program.

When USA Today published an article on May 11 alleging that the National Security Agency (NSA) had teamed up with major telecommunications companies to obtain access to Americans' communication records, Cowie sent an e-mail to Verizon CEO Ivan Seidenberg, asking if the company was taking part in this program. After ambiguous responses from Verizon, Cowie filed a complaint with the Maine PUC. According to Cowie, the "PUC is supposed to determine whether the complaint has merit and if it does, it's supposed to open an investigation and have a hearing." (He would know -- part of his former position there was managing these very complaints.) After two months of silence, the PUC finally acted, asking Verizon to swear under oath to the veracity of a May press release the company issued in response to the USA Today allegations.

That release claimed that Verizon was not providing records to the government, but was ambiguous enough to leave room for doubt. A deadline was set for Verizon to respond and about an hour after the deadline passed, a response was received -- a Justice Department announcement that it was suing the state of Maine.

The department invoked the state secrets privilege and claimed that for Verizon to even affirm that their previous statement was true would endanger the country. That's ridiculous, says Cowie. "[If] Verizon's public statements had classified information in them, they would have gone to jail."

Minutes after receiving notice of the Justice Department suit, Verizon submitted their filing, which stated that it could not verify its previous press statement because of the lawsuit that had just been announced. At that point, the Maine Civil Liberties Union (MCLU) got involved. The MCLU maintains that the Justice Department has no legal basis to sue the state of Maine for enforcing state law. Shenna Bellows, executive director of the MCLU, says that the department's claim that forcing Verizon to verify its previous statements would threaten national security "doesn't pass the straight-face test."

The Justice Department has sued four other states that launched similar inquiries: Missouri, Connecticut, Vermont and New Jersey -- where the DoJ sued the attorney general for subpoenaing telecommunications companies within the state.

Doug Cowie's call for an investigation in Maine has now been backed up by some 400 other Mainers. That the PUC has yet to be assertive in its investigation confuses him. "I honest to God don't understand it," he says. "I'm so disappointed. The PUC should have tried to do the investigation based on unclassified data. I've been basically told that the staff has been told not to talk to anybody about this." Because the PUC refuses to pursue Cowie's complaint, legal remedy can't be sought.

While the legality of the NSA program has been challenged, the Bush administration has been pushing Congress to keep the cases out of the courts. Bills sponsored by Sen. Arlen Specter (R-Pa.) and Rep. Heather Wilson (R-N.M.) would redefine electronic surveillance and force the cases against the NSA and telecommunications companies into the secretive Foreign Intelligence Surveillance Court of Review, effectively keeping the cases, and any judicial remedy, from public eyes.

Regardless of the outcome, Cowie intends to spend his retirement making sure Americans' constitutional rights aren't violated. "Who the hell wants to take up all your time doing stuff like this?" asks Cowie. "But something has to be done. You just gotta do it."

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Onnesha Roychoudhuri is a Brooklyn-based freelance writer. A former assistant editor of AlterNet, she has also written for MotherJones.com, Women's e-News, and PopMatters.

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