It appears that conservative filmmaker James O’Keefe is continuing to comment on his case. Raw Story and other sites are reporting that O’Keefe tweeted shortly around midnight last night that “Govt official concedes no attempt to wiretap.” In the meantime, it appears that the stunt in New Orleans may have been an effort to cut off the telephones or film their operation as opposed to wiretapping calls. I discussed this story on Hardball and Rachel Maddow.
As noted in the segment below from Countdown, the affidavit accompanying the charges was curious in two respects. First, the government was charging a higher category of trespass by alleging intent to commit a felony. However, the prosecutors failed to state what that felony was. The clear suggestion of the affidavit was that the “malicious” interference with the telephone system was to wiretap Sen. Mary Landrieu’s office. Second, if this was a conspiracy to wiretap, one would have expected a reference to electronic surveillance equipment found at the scene.
Now, O’Keefe is saying that the government is not pursuing a surveillance theory. Such a development is important and worth public attention.
If he is not accused of attempted electronic surveillance, the ten year maximum under section 1036 may be the upper limit. The affidavit appears to be referring to section 1362 which states:
Whoever … willfully or maliciously interferes in any way with the working or use of any [radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States], or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than ten years, or both.
Section 2 of that law expressed includes:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
This may ultimately be the dispossession of the charges with Sections 1036 and 1362. However, there are also possible charges of conspiracy and false statements for these men as well as possible third parties.
It has also been reported that O’Keefe is under a gag order not to discuss the case. These orders can create difficulties for the defense when someone like O’Keefe is being widely accused of a wiretapping conspiracy. He has an obvious desire to rebut those allegations — as do his lawyers. Moreover, he was merely referencing a news development in a brief tweet.
Finally, a court would be on precarious ground when it says that a defendant cannot speak for himself in public. O’Keefe could raise first amendment claims if the government decides to raise the matter with the court. Nevertheless, it could be viewed as a technical violation since these orders often refer to the parties in general and not just the lawyers. One recent such controversy occurred in Texas, here, but such disputes are not uncommon in high profile cases. For another such recent case, click here.
Restrictions on statements to the press are often imposed by court rules for any criminal case. A court can then add a more detailed and demanding gag order in a given case. Reports indicate that a gag order was in place in this case.
Attorneys in some recent hig-profile cases have asked for such gag orders to be lifted to allow their client to defend himself in the public forum, here. On occasion, courts will grant such motions.
Even without a gag order, it is always a mistake for clients to directly manage the media or speak on a case. Most lawyers strictly forbid such communications absent prior legal review and supervision. While this violation is not likely to result in a serious penalty, it can bring a rebuke from the Court and undermine the relationship with the judge.
MSNBC is reporting that officials say that the men did want to interfere with the phones by shutting them off (one of the possibilities that I discussed below). In a remarkably dumb prank, they “wanted to see how her local office staff would respond if the phones were inoperative.” This was connected to their opposition to Sen. Landrieu’s position on health care. I will not try to bridge that logical gap.
O’Keefe seems to relish reckless acts. His stunt with ACORN appears to have violated state laws. Even without a surveillance conspiracy, the Landrieu stunt is still quite serious. What is interesting is that O’Keefe hardly needs to directly communicate such information given the press attention in the case.
For the story, click here.
Mike Spindell said “Duh and BdA obviously approve of trespassing and attempted burglary as long as its’ done for their cause.”
I do not condone burglary, but I have no problem with undercover jounalism, and neither does Mike Spindell when he supports the cause.
To support my claim, (that Mike Spindell has no problem with undercover investigative journalism when it supports his cause) please look at his comments here:
http://jonathanturley.org/2009/07/22/worst-show-on-earth-ringling-bros-accused-of-elephant-abuse-based-on-undercover-video/#comments
and here:
http://jonathanturley.org/2009/04/20/oscar-special-father-of-slumdog-millionaire-child-actress-accused-of-trying-to-sell-daughter/#comments
Readers should note that not a word of distain was expresses by Mr. Spindell when he supported the cause. I point this out to expose the hypocrisy of Mike’s statements. I have no problem with undercover journalism, and most people don’t, unless it interferes with their cause.
Now for those who put haloes over these guys heads and protest their innocence three plausible theories as to what they were doing.
1. They were casing the office for a bugger to come in later and do the job.
2. They bought bugging equipment and instructions from a Spy Store and stupidly thought it was easy.
3. They were getting stock footage of the office so they could later re-edit the tapes to show some nefarious purpose.
By the way for those who keep using ACORN as an evil agent, look at some of the organizations on your side, which make ACORN holy by comparison. In truth ACORN is an excellent organization, but their goal of voter registration doesn’t fit the conservative model.
“Just some thoughts. I’ll be very interested in hearing O’Keefe’s side of the story.”
I’m sure you would since your arguments so far injustifying this fall flat. The truth is though and you know it, that if O’Keefe’s story was:
“Yeah we snuck in to get stuff on Landrieux because she’s a Democrat Senator”
you would find that an exculpating excuse.
“Did I say I was from Pepsi? Did I misrepresent myself?”
Pinandpuller,
Your wearing a uniform and the fact that you were known as a Pepsi delivery person amounts to misrepresentation. In this case these men identified themselves as being specifically from the phone company. There is no way around it they were misrepresenting themselves and that in the context was criminal per se.
“I think O’Keefe is a pretty sharp cookie. I don’t think he would do something as reckless as many would claim. I’ll just have to wait and see.”
Right there is part of the problem with those who are trying to provide rationales. Richard Nixon, E. howard Hunt and Gordon Liddy were also “sharp cookies” and see how that turned out.
Pinandpuller,
It would seem to me that if you gain entrance to someone’s office on the basis of deception you are at minimum trespassing. The gaining entrance through deceit is actually a common burglary methodology. Duh and BdA obviously approve of trespassing and attempted burglary as long as its’ done for their cause. This is known either as hypocrisy, ingnorance, or perhaps a mixture of both.
“EW ORLEANS — Investigators pressed ahead with their probe of four men accused of trying to tamper with a senator’s phones after a lawyer said the conservative activists were just trying to capture embarrassing video of her staff ignoring constituent calls.
For her part, Democrat Sen. Mary Landrieu wasn’t impressed with the lawyer’s explanation Thursday that the men hoped to document claims that callers couldn’t get through with complaints about her support for health care reform.
“Attorneys are hired to spin for their clients,” she said Thursday in an interview in Washington. “Good luck”
http://www.huffingtonpost.com/2010/01/29/landrieu-phone-scheme-mea_n_441505.html
I assume entrances to federal building are video monitored and taped. It would be interesting to see how the 2 defendants posing as telecom workers approached and gained acccess. Were they dressed in complete uniform or partial (i.e. vest, helmets in a backpack)?
Perhaps this is one area where they gained access to the building using false pretenses. Presenting themselves as constituents who just happened to be generic construction workers with a toolbelt. Then they donned the fake telecom outfits before entering the Senator’s office. This way they only needed to show their government issued ID, and not a “work order.” (Just another theory amongst many!)
Additionally, it seriously bugs me when counsel refers to these MEN as kids. I know they are doing their job to spin and downplay, but the really frustrating part is MSM continues to call them “kids” which wrongly plays into the “it was a prank” or “they meant no harm” in the theater of public perception.
As for “Duh” thinking “O’Keefe is a pretty sharp cookie,” just simply shows a disturbing level of infatuation for a tawdry character who’s obviously attempting to play investigative journalist to feed his narcissistic television fame endeavors.
Had they been successful in entering and exiting it’s nearly certain they would have doctored, spliced, edited, modified dialogue using voiceovers to make the video fit any objective their financial handlers deemed necessary.
——–
I admit I’ve fallen for this story and all the intricate twists and turns which have unfolded over the last 48 hours. Thanks everyone for all the great posts!
Its not guaranteed of course what the system is like but 9 times out of 10 there’s a LAN hop in the wiring closet and the telco usually terminates the data T’s right where they terminate the voice T’s, if that’s what they have. An old copper Frame T, channelized or not is going to hop off to the LAN somewhere. And that’s where you’re going to put your little friend in the middle. Maybe you might need your crimpers but because they think you’re with the phone company then no one is going to think it odd that you’re working on a wire. And you probably won’t need to. That’s only if it goes into the wall.
Once you get into the wiring closet under the guise of a telephone repairman you’ve pretty much got as much access as you want, assuming you know what you’re doing.
This is why that GSA employee that challenged them for ID deserves a promotion. Phone company employees have photo IDs. These guys were obviously dupes and probably couldn’t have pulled off a hack but if someone set up the equipment for them all they’d have to do at the least is plug it in and at the most splice a wire or two to build your secret little hop.
Chances are it would have sat there for months before anyone noticed it too.
“Assuming the telecom system in question is VOIP-based – and even assuming the data packets pertaining to calls routed to phones in Sen. Landreau’s office – I don’t believe it’s possible to instruct a wireless router which parts of the total data available to push out via wireless.” – The Ombudsman
First whether its VOIP or not is moot. Most telco DS1’s terminate in the phone closet right next to the voice lines.
As for the Wireless router you’d simply set it up for point to point tunneling then direct the gateway to the receiving end. Then sniff the traffic coming through the tunnel. And since email is sent in plain text you could literally sit there and read every email coming into or leaving the building. Assuming you mirrored the right T.
“That would have to be a fairly powerful wireless-N router – to be able to get a signal off of it from ten floors up, plus all the concrete/steel/etc. between it and the spot chosen to set up shop.” The Ombudsman
Not really. That’s why the coffee can to amplify the signal to your receiver. As long as you know the area of the bldg the closet was in and can locate it from the outside, piece of cake. You might have to place a signal booster or two along the path but not a problem if they think you’re with the phone company.
That would have to be a fairly powerful wireless-N router – to be able to get a signal off of it from ten floors up, plus all the concrete/steel/etc. between it and the spot chosen to set up shop.
Beyond that, an 802.11n signal doesn’t have the bandwidth to cover the likely amount of data that would be going through that phone system. The telecom closet on the 10th floor (where Sen. Landreau’s office is) likely handled the telecom traffic for the entire floor – fairly typical office building design. That would be a lot of data pushing through at any given time – far more than 802.11n would be able to keep up with.
Assuming the telecom system in question is VOIP-based – and even assuming the data packets pertaining to calls routed to phones in Sen. Landreau’s office – I don’t believe it’s possible to instruct a wireless router which parts of the total data available to push out via wireless.
“Even having done PBX work professionally, I’m a bit unclear how they would pull that off via the wiring closet. They must have been imagining dozens of Analog lines instead of a T or something. They are idiots.” -kgb999
Wouldn’t be hard at all really. Simply pull the LAN side of the T and plug into a small hub to split the transmission then connect to a wireless N router.
Then sit outside in a van with a laptop and coffee can and a sniffer on the laptop and grab all traffic in and out of the building on that T.
Duh,
Part two:
You said “All the two imposters would need to do is claim that they never asked where the closet was. They were just there to investigate why phones weren’t ringing thru to the Senator’s office, and it was the GSA employees that directed them to the closet, which is why O’Keefe was waiting for them in the Senator’s office while they failed to show up.”
It seems you haven’t bothered to read the affadavit.
“it was the GSA employees that directed them to the closet”
Paragraphs 7 and 8. The GSA employee was on the 10th floor, where the telecom closet is, and not in Sen. Landreau’s office to direct them to the 10th floor.
“which is why O’Keefe was waiting for them in the Senator’s office while they failed to show up”
Paragraph 4. O’Keefe was already in Sen. Landreau’s office when Flanagan and Basel arrived.
This is starting to sound like a quantum-mechanically-mixed up game of “Clue”, where the murder victim isn’t really a murder victim – in fact, *that* person murdered Col. Mustard with the lead pipe in the conservatory!
“Am I responsible for other’s preconceived notions?”
Wearing a Pepsi shirt (the kind an employee would wear) and telling the security officer that you needed to look at the vending machines on the third floor, might be enough to justify the other’s preconceived notion that you worked for Pepsi, or were an authorized agent thereof.
If it walks like a duck. :>)
Duh,
Of course I noticed it. I quoted it in my last post with the link to the affadavit – in the line *immediately before* the link.
Why do you feel that the affadavit would be false in this regard? If the two indeed did *not* represent themselves as telephone company employees, why would the affaint (that’s the term for an individual making an affadavit) state as much?
Certainly, it’s possible that the FBI agent who wrote the affadavit got that bit wrong. But as he stated at the beginning of the affadavit, he’s got six years in the FBI, around 19 in law enforcement in general. It’s unlikely he would make such a mistake of attribution.
Granted, the affiant in this case is representing what someone else (“Witness 2”, a GSA employee) reported to him as far as that witness’s interaction with those Flanagan and Basel.
Your desire to defend your friend is understandable, but that desire is sending you down the road of concocting tales that portray O’Keefe and company as cherubic good samaritans, and everyone else involved – folks at their places of employment, as opposed to these four individuals who were far from their homes – as self-serving and deserving of being “chewed up and spit out”.
Plus, why are you bringing up “tapping”? Nowhere in the affadavit is wiretapping mentioned.
The Ombudsman
“Your example falls flat, I fear. There are no federal statutes regarding tampering with vending machines owned by the US.”
My example just had to do with gaining access without actually misrepresenting myself. I may not actually have any business up there but would it be trespassing? Am I responsible for other’s preconceived notions?
Ombudsman,
Thanks for pointing out the paragraphs in the affadavit.
Did you notice paragraph 8 wherein they “represented that they were employees of the telephone company”?
I doubt that the affadavit would just say that they “represented that they were employees” if they had actually stated such. That could just as easily been worded that Witness #2 assumed that they were employees of the telephone company. Then the two could claim that witness #2 also assumed that they needed to get to the closet. All the two imposters would need to do is claim that they never asked where the closet was. They were just there to investigate why phones weren’t ringing thru to the Senator’s office, and it was the GSA employees that directed them to the closet, which is why O’Keefe was waiting for them in the Senator’s office while they failed to show up.
That pretty much brings us down to witness #1. Since Witness #1 didn’t ask for ID, they will chew the witness up and spit him/her out. The credibility of a witness who needs to cover their rear is not very good. And then we have the probability that neither of the men had possession of the equipment necessary to perform any tapping.
Just some thoughts. I’ll be very interested in hearing O’Keefe’s side of the story.
The Ombudsman
“Your theory does not explain why two of them were dressed as telephone technicians, and requested access to the telecom closet.”
It does explain why they should have stuck with low-hanging fruit, as it were.